CHAPTER I

INTRODUCTION

1. A. RATIONALE

The United Nations General Assembly (UNGA) proclaimed the commencement of the World Programme
for Human Rights Education on January 1, 2005, following the UN decade for Human Rights Education in
1995-2004.

Pursuant to that, the Commission on Human Rights (CHR) of the Philippines issued Resolution Nos.
A2007-028 and A2007-029 urging the Commission on Higher Education and law schools in the
Philippines to offer Human Rights in the Philippine Law curriculum.

Subsequently, on December 19, 2011, the United Nations General Assembly (UNGA) adopted the United
Nations Declaration on Human Rights Education and Training. Article 3 of the declaration states that
Human Rights education and training “concerns all ages” and “all levels” including preschool, primary,
secondary and higher education.

More than sixty (60) years since the adoption of the Universal Declaration of Human Rights and the
ratification of several human rights treaties by the Philippines, as well as the consequent enactment of
domestic human rights legislations along the way, the appropriate and formal education and training on
human rights laws in the country are still slacking. There are still law schools that do not offer Human
Rights Law as a separate subject, and majority of university courses do not include the subject in their
curricula. As a result, we have professionals who are only semiliterate in human rights. Many do not
have an inkling of what the Universal Declaration of Human Rights is all about. Millions of Filipinos are
not aware of the international human rights conventions that were ratified by the Philippines by virtue
of which obligations arise. Whenever we get some international attention for human rights abuses,
people tend to think that it is just those “bully superpowers” interfering in our affairs again. Many
people in the government do not quite comprehend the concept of “State Responsibility.” Whenever
these government people are taken to task for failure to protect human rights, they tend to think that
it’s just those loudmouthed protesters and “communists” complaining again. This lack of or insufficient
education and training on human rights laws has spawned a lot of unnecessary hatred and even violence
in the country, and it is about time that the United Nations declaration be faithfully heeded.

It is interesting to note, though, that the Philippines is usually among the first countries to ratify
important human rights treaties, and was even one of the members of the first United Nations Human
Rights Commission responsible for the drafting of the Universal Declaration of Human Rights. So, while
the country's international participation has always been active, a large part of the population at home
still needs to be educated in order for them to know, understand, and respect human rights.

Without a doubt, the most effective tool against human rights abuse is education: it makes a person less
likely to commit human rights violations, and less likely to become a victim either. As stated in Article 2
of the UN Declaration on Human Rights Education and Training, "Human rights education and training
comprises all educational, training, information, awareness-raising and learning activities aimed at
promoting universal respect for and observance of all human rights and fundamental freedoms and thus
contributing to, inter alia, the prevention of human rights violations and abuses by providing persons
with knowledge, skills and understanding and developing their attitudes and behaviors, to empower
them to contribute to the building and promotion of a universal culture of human rights."

The aim of this book is to introduce readers to the general principles of human rights laws, the
important human rights documents, the core human rights treaties, and the strategies and mechanisms
for the protection of human rights. Both international and Philippine sources of human rights law are
treatise in this book.

B. SCOPE AS A SUBJECT

In the Philippine legal education curriculum, International Human Rights Law is part of Political Law. The
Bar Examinations on Political Law in the recent past asked quite a number of questions on this particular
field of law.

As an independent subject in law school, it usually covers the general principles of Human Rights Law,
the United Nations System, the core human rights treaties and their application and monitoring
mechanisms, International Humanitarian Law, and the international criminal tribunals. In many aspects,
the subject intertwines with Criminal Law, Labor Law, and Tort.

As part of the International Law course, emphasis is given to the United Nations system and the
International Bill of Rights. Other core human rights treaties are sometimes sidelined in this structure.

The thrust of the United Nations now is to make available at all levels the proper education and training
on human rights law based on the principles of the Universal Declaration on Human Rights and other
human rights documents. The UN Declaration on Human Rights Education and Training aims to raise
"awareness, understanding and acceptance of universal human rights standards and principles, as well
as guarantees at the international, regional and national levels for the protection of human rights and
fundamental freedoms."

C. PHILIPPINE CONTRIBUTION TO INTERNATIONAL HUMAN RIGHTS LAW

Philippine contribution to UDHR

The Philippines was a member of the first United Nations Commission on Human Rights, which was
composed of only sixteen (16) countries. From 1946 to 1948, this Commission was responsible for the
drafting of the Universal Declaration of Human Rights (UDHR), the first document to embody the
aspirations of states for a world community based on the recognition and respect of human rights. The

Philippines was also one of the original forty-eight (48) countries that adopted UDHR on December 10,
1948.

Philippine participation on core human rights treaties

Both the International Convention on Economic, Social and Cultural Rights (ICESCR), and the
International Convention on Civil and Political Rights (ICCPR) were signed by the Philippines on
December 19, 1966, long before they entered into force. However, while the ICESCR was ratified by the
Philippines on June 7, 1974, it was not until October 23, 1986 when the ICCPR was ratified. It must be
remembered that Martial Law was in force in the country from 1973 to 1983. It was only In 1986 when
President Ferdinand Marcos left the Philippines, with President Corazon C. Aquino taking over the
presidency.

The Philippines was also among the first signers of the International Convention Against Racial
Discrimination. To date, the country has ratified all core human rights treaties, except one, i.e., the
International Convention for the Protection of All Persons from Enforced Disappearance, which entered
into force in December 2010. It is interesting to note that the Philippines usually signs and ratifies
human rights treaties without reservations or comments.

On women’s rights: the “mother” of CEDAW is a Filipina

One of the core human rights treaties that could definitely make this world a better place to live in, and
benefit more than half the world’s population, is the Convention on the Elimination of Discrimination
Against Women (CEDAW). Unknown to many, this is the brainchild of a Filipina, Leticia Ramos-Shahani, a
former diplomat and senator. She is a genuine trailblazer for women’s rights, and she almost
singlehandedly placed the Philippines in the international map on women rights crusade. In 1974 she
became the chairperson of the UN Commission on the Status of Women, which organized the First
World Conference on Women, in Mexico City.

Shahani is credited for the preparation and submission of the complete draft of the Convention on the
Elimination of Discrimination Against Women, even without the clearance from the Philippine
government. This author would like to refer to her as the “mother of CEDAW.” Another women’s rights
instrument that she pushed for was “The Forward-Looking Strategies for the Advancement of Women”
(FLS). As the Secretary-General for the Nairobi Conference in 1985, she successfully engineered the
adoption of the FLS despite the initial controversy it generated.

Membership to the International Criminal Court

Although a latecomer to the International Criminal Court, having become a member only on November
1, 2011, the Philippines lost no time in actively getting involved in the court’s activities. The following
month, Miriam Defensor-Santiago, a sitting senator, former jurist and International Law expert, was
elected as judge of the court.

D. HUMAN RIGHTS LAWS OF THE PHILIPPINES

The Philippines had been conscientious in complying with its obligations under international treaties in
regard to the enactment of relevant municipal laws designed to ensure domestic compliance. Many of
these domestic laws adopt the language and wording used in the international conventions, if only to
emphasize the country’s commitment to follow international standards.

The sources of Human Rights jurisprudence in the Philippines are the Philippine Constitution, legislative
enactments, Supreme Court rules, rulings and orders, and executive issuances. All the three (3)
departments of government are actively involved in the policy making aspect of human rights
protection. However, the full execution and widespread implementation of such policies still leave much
to be desired.

Philippine jurisprudence on human rights includes the following:

[Link] Philippine Constitution — Contains the Bill of Rights; lays down the bases for all the civil, political,
economic, social and cultural rights of persons.
[Link] of the child

2.1. RA 9344 — Juvenile Justice and Welfare Act of 2006

2.2. RA 7610 — Law Against Child Abuse

2.3. RA 9231 Elimination of the Worst Forms of Child Labor

2.4. RA 9775 — Law Against Child Pornography

2.5. RA 8044 --- Youth in Nation-Building Act

2.6. RA 6972 Act Establishing Day Care Center in Every Barangay

2.7. PD 603 — The Child and Youth Welfare code

[Link] of women

3.1. RA 9262 Anti-Violence Against Women and Their Children

3.2. RA 10364 — The Expanded Anti-Trafficking in Persons Act of 2012

3.3. RA 9710 — Magna Carta of Women

3.4. RA 7877 — Law Against Sexual Harassment

3.5. Act 4112 — Women Suffrage Act

3.6. PD 633, as amended — Creating the National Commission on the Role of Filipino Women

3.7. EO 273 — Philippine Plan for Gender-Responsive Development

3.8. Pres. Proc. 1172 — Campaign to End Violence Against Women

3.9. RA 6955 — Act Against Mail Order Brides

4. Rights of Lesbian, Gay, Bisexual and Transgender Persons (LGBT)

4.1. Ang Ladlad vs. COMELEC, April 8, 2010

[Link] of Senior Citizens

5.1. RA 7432 Senior Citizen’s Act

5.2. RA 7876 — Senior Citizen Center Act

5.3. RA 9994 — Expanded Senior Citizen Act

[Link] of Disabled Persons

6.1 BP 344 — An Act to Enable the Mobility of Disabled Persons

6.2 RA 7277 — Magna Carta of Disabled Persons

6.3 RA 9442 --- Law Amending the Magna Carta of Disabled Persons

6.4 RA 10070 — Act requiring the creation of Persons with Disability Affairs Office (PDAO) by local
government units

6.5 DILG MC 2009-37 On issuance of identification cards and purchase booklets for PWDs

6.6 DILG MC 2009-29 — On community-based programs for children with disability

6.7 Adm. No. 35 — Directing departments, bureaus, agencies and educational institutions to conduct
activities during the annual observance of the National Disability Prevention and Rehabilitation Week.

[Link] of Workers and Laborers

7.1PD 442, as amended — Labor Code of the Philippines, incorporating the New Labor Relations Law
and the Prohibition on Discrimination Against Women

7.2 RA 8024 — Migrant Workers Act

7.3 RA 10022 Law amending the Migrant Workers Act

7.3 RA 8187 — Paternity Leave Act

.Right to social security

8.1 RA 8282, amending RA 1161 — The Social Security Law

8.2 RA 8291 — The Government Service Insurance System Act

[Link] to Health

9.1 RA 7875 — National Health Insurance Act

9.2 Pres. Proc. 46 Child and Mother Immunization Project

10. Right to a healthy environment

10.1. Oposa vs. Factoran, July 30, 1993

11. Right to privacy

11.1. SC A.M. No. 08-1-16-SC — The Rule on HabeasData

11.2. RA 9995 — Anti-Photo and Video Voyeurism Act

11.3. RA 10173 — Data Privacy Act of 2012

12. Right to life, liberty and security

12.1. The Anti-Enforced or Involuntary Disappearance Act of 2012

12.2. RA 9745 — Anti-Torture Act

12.3. The Rule on the Writ of Amparo

12.4. Adm. Order 181 Investigation and Prosecution of Political and Media Killings

12.5. Adm. Order 197 — Enforced Disappearances and Killings

13. Remedies of unjustly arrested and/or detained persons

13.1. RA 7309 — Law Creating the Board of Claims

13.2. Rule 102, Rules of Court — The Rule on Habeas Corpus

13.3. Rule 9439 — Law Against Hospital Detention

13.4. RA 10368 — Human Rights Victims Reparation and Recognition Act of 2013
[Link] of accused, victims, and witnesses of crimes

14.1 RA 8505 — Rape Victims Assistance Act

14.2 RA 6981 — Witness Protection Act

14.3 RA 9999 — Free Legal Assistance Act

14.5 RA 9346 — Law Abolishing Death Penalty

14.5 Bill of Rights, Philippine Constitution

14.6 Rule 115, Revised Rules of Court

[Link] human rights violations penalized

15.1 Act 3815 Revised Penal Code of the Philippines

[Link] Rights mechanisms

16.1 EO 163 Creating the Commission on Human Rights

16.2 RA 9201 National Human Rights Consciousness Week

16.3 PD 443 On Delivery of Social Services.

E. CONSTRUCTION OF HUMAN RIGHTS INSTRUMENTS

Human Rights law is dynamic, and continues to evolve. The instruments embodying human rights
treaties, laws and principles are "living" instruments that must be interpreted in the light of
circumstances surrounding and attendant to every case. They cannot be tied down to obsolete practices
and beliefs but have to be made adaptable to current societal landscapes if they are to have any
relevance at all.

When a human rights law has the effect of modifying another law without repealing the latter, an
attempt at harmonizing them has to be made. For instance, the law against trafficking in persons makes
clear that trafficked prostitutes are to be considered victims and are not to be prosecuted. However, the
trafficking law does not operate to repeal Article 202 of the Revised Penal Code on prostitution
absolutely. Thus, this law punishing women for prostitution still remains, it being one of the few
remaining discriminatory laws against women in this country. Where two (2) apparently inconsistent
laws can stand independently, they have to be interpreted in favor of the validity of both. Thus, a
prostitute who is not trafficked, or a freelance commercial sex worker, may still be held liable for
prostitution under the Revised Penal Code. (The part of Article 202 on Vagrancy was finally repealed in
April 2012.)

CHAPTER II

HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE THREE “GENERATIONS”

A. MEANING OF HUMAN RIGHTS

The Preamble of the Universal Declaration of Human Rights (UDHR) mentions the “inherent dignity and
of the equal and inalienable rights of all members of the human family.” Human rights are not granted
by the State, nor stemmed from citizenship in a country. Human rights are rights which necessarily
spring from being a member of the human species.

Many in the Philippines think that human rights obligations are purely governmental, or that the scope
of the right is limited to political beliefs, or that human rights pertain to certain economic or social rights
of a particular exclusive group of people. Often, this myopic view gets abused for political agenda. Thus,
we see human rights violations committed by state-agents who are supposed to protect human rights,
just as we see violations committed even by elements calling themselves “human rights advocates.” We
see many armed conflicts fought in the name of freedom and human rights, and yet we see the innocent
and the peace-loving being deprived of their rights and freedoms because of these so-called “freedom”
wars. Without a more open-minded and comprehensive understanding of human rights, there will
always be the possibility to address one aspect but at the same time violate another.

Human rights law is a broad field, and includes not only the relationship between men and government,
or the civil and political rights of the people, but extends as well to their economic, social and cultural
rights, to the right to development and a peaceful and clean environment where they could develop in
all facets as human beings. It covers education, employment, health, family, and marriage, among many
others. More importantly, it covers every individual and does not operate to protect exclusively only a
particular group of people. Both private individuals and public officers have the duty to respect each
other’s rights.

B. ATTRIBUTES OF HUMAN RIGHTS

Human Rights have the following attributes.

 Universal. — Human rights apply to all humans, regardless of race, culture, age, sex, or creed.

 Inherent. — All human beings are born with these rights; these are not conferred by any
authority.

 Equal. — Every human being has the same set of rights as any other. Article 1 of the Universal
Declaration of Human Rights states that, “All human beings are born free and equal in dignity and rights.

 Inalienable. — Human rights cannot be taken from or given away by any human. While its
exercise may be regulated or restricted by law, its substance cannot be taken away.

C. ORIGIN OF HUMAN RIGHTS

“Human Rights” is a relatively modern concept that gained considerable attention only after World War
Il. Although the rights of men are as old as man himself, the concept of human rights and their
protection by the State were unheard of then.

Society needed a government for order and survival. However, in the past, most government systems
were despotic in nature, the Philippines included. We had the datus and the rajahs before the Spanish
came to colonize us and place the nation under the control of Spain. Despotic systems had rulers with
vast powers, exercising the roles of lawmaker, judge, landowner, people-owner, high priest, and in some
imperial systems, even the son of God or a supreme deity. Social order centered on the ruler and the
elite, who for some reasons, tend to develop hubris syndrome. We read of kings who ordered the killing
of subjects without hearing their side, even for the flimsiest reasons, in very brutal ways, such as
burning, mutilation, and feeding to wild animals. Subjects rendered service without compensation all
their lives for the enrichment of the royalty and nobody cared how they managed to survive in their
daily affairs. The peasantry was not the only class deprived of their human rights. History tells us that
members of the royalty also suffered when they fell from the rule/s grace.

Although some of the religions started off as refuge from dictatorial regimes, some of them evolved into
dictatorships themselves. When some religions became very powerful, some of them became selfish,
controlling, manipulative and even brutal. In the medieval period, religion was sometimes used as an
instrument of imperialism, to conquer not only lands but also the minds of the people into submission.
Several bloody crusades were fought in the name of religion. In Europe and Asia, there were religious
officials who wielded so much power not only in their church, but also in government and in business.

Back then, the members of the working class were chattels who were not entitled to anything that their
sovereign did not want to give them. Human Rights protection for the peasantry was unheard of,
freedom of expression was taken as heresy, and the monarchs and religious leaders were the absolute
authority.

In the late 1800’s and the beginning of 1900’s, science and education empowered more people and
made them more critical. The working class started to assert itself, and the elite began to treat workers
better. The transition was a difficult time for both classes, and a lot of blood was shed to drive home the
point. Consequently, more liberal rulers emerged, and more democratic governments developed. The
monarchies became more people oriented, and commoners began occupying important positions in
government. The world started becoming more liberal in its outlook and respectful of the individual’s
freedom to think and believe. Religions, on the other hand, started accepting schools of thought which
otherwise would have been regarded as heresy and outrageous. In fact, many religious educational
institutions could be credited for some of the early stages of human rights education.
As the necessity for trading and mutual assistance among countries became inevitable, organized
governments and economies started forging diplomatic relations. The League of Nations was born in the
1920’s, and the concepts of sovereignty, independence, and interdependence were formalized among
the members of this family of nations. Yet, at that time, human rights principles were not put in writing,
except for the outlawing of slavery and giving assistance to the sick and the wounded in times of war.

It was after the two (2) world wars when the issue of human rights took center stage. The destructive
effects of the wars impelled leaders from different countries to come together and forge an alliance to
maintain world order through the protection of human rights. On June 26, 1945, the Charter of the
United Nations was adopted. On December 10, 1948, the United Nations General Assembly (UNGA)
adopted the Universal Declaration of Human Rights. December 10 has since been observed as
International Human Rights Day. Other treaties and protocols were thenceforth entered into by states.
To this day, there are ten (10) core human rights treaties.

D. THREE (3) "GENERATIONS" OF HUMAN RIGHTS

The three (3) generations of human rights refer to the order in time when a particular set of rights began
to develop and gain the recognition by states. The term "generation" does not mean that one set or
group came after another set or group, or that the first "generation" was rendered obsolete when the
second "generation" emerged. The "generations" are not also stages of the rights, because the third
generation is not a mere improvement of the second, nor the second a mere improvement of the first.
Rather, the term "generation" refers to the succession of periods when societies and governments
began recognizing a set of rights, though not necessarily in the order of man's priority, for man's first
priority was more economic than political, such as the right to food, etc., a right recognized by humans
long before governments and rulers came into being.

First generation human rights refer mostly to the political rights and civil liberties found in the
International Covenant on Civil and Political Rights (ICCPR), such as the prohibition against searches and
seizures, interruption of peaceful meetings, or undue intervention to the freedom of expression. These
are "negative" rights in the sense that they prohibit the doing of something. They are the "No one shall"
rights.

Second generation human rights are "positive" rights that enjoin States to perform an act or do
something for the enjoyment of these rights by the people. These are mostly economic, social, and
cultural rights found in the International Convention on Economic, Social and Cultural Rights (ICESCR),
such as the right to work, to education and to food. They are the "State shall" rights.

Third generation human rights are newly emerging rights, such as the right to development, the right of
the people to live in a clean environment, right to live in peace, etc. These are also known as solidarity
rights.

. WHY THE STATE?

We hear so much clamor for the observance of human rights, in the courts, the streets, and in media.
The term human rights are almost a byword to us; but how fully do we understand it? Many of us
wonder why the term usually crops up only when the victim is a government critic. We often hear the
gripe “Pag rebelde ang biktima, violation of human rights, pero pag pulis o sundalo ang pinatay, alright?”

The State as guarantor of human rights

The State is not the giver of human rights, for these are inherent in all human beings. The role of the
State in the social order is to see to it that members of society acknowledge its authority and that it
governs the people properly. In turn, the State must recognize that the people have rights and freedoms
that are inherent in them and cannot be taken away. With this recognition is the State’s duty to
guarantee the continued enjoyment by the people of their rights. In other words, in order to achieve an
orderly society where there prevails a harmonious relationship between the ruler and the ruled, the
ruled must bow to the authority of the ruler, and the ruler must respect the inherent rights and
fundamental freedoms of its citizens.

As guarantor of human rights, the State may be held accountable when people are deprived of their
rights by its action or inaction.

No such guarantee exists on the part of private entities and civilians. If a security guard at a shopping
mall checks a customer’s bag upon entrance, the customer cannot invoke the protection against
warrantless and illegal searches, and sue the mall for violation of his/her human rights for the guard’s
act. The Supreme Court made a very instructive ruling on this in the case of People of the Philippines vs.
Andre Marti, l which will be discussed later. It does not mean, however, that private persons are exempt
from liability for human rights violations. They still are, although not directly within the sphere of our
existing “human rights mechanisms,” but under criminal law. Nonetheless, the Philippine ratification of
the Rome Statute in November 2011 may subject Filipino individuals to international criminal liability for
certain offenses. Human rights scholars also opine that corporations could be liable for human rights
violations.

For the meaningful enjoyment of human rights by everyone while maintaining the delicate balance of
ensuring a peaceful and orderly society under a regime of the rule of law, the State may regulate and
limit certain activities of its people. By virtue of the Police Power, Congress may pass laws to uphold and
promote human rights as well as set parameters within which they can be enjoyed. Executive officials
may implement programs to enhance the conditions of the people and enforce laws for the observance
of those parameters, and the Supreme Court may issue orders and writs to protect human rights. In
short, that “delicate balance” can only be achieved if the State promotes the respect for human rights,
and members of society acknowledge that the enjoyment of certain rights is subject to the State’s
prudent and reasonable exercise of

Police Power. Thus, the wisdom and application of the legal maxim in property law, “Sic utere tuo ut
alienum non laedas” (“So use your own as not to injure another’s property”).

Human Rights and the Rule of Law

In order for society to strike the delicate balance between the government’s authority to rule and the
people’s entitlement to their inherent rights, a strict adherence to the Rule of Law must be observed.

Under the Rule of Law, “the law is preeminent and can serve as a check against abuse of power. This is
opposed to Rule by Law, where the law serves “as a mere tool for a government that suppresses in a
legalistic fashion.”

There is perhaps no better illustration of the contrast between the terms Rule of Law and Rule by Law
than this one by Professor Li Shuguang. The early concepts of Rule of Law included those which were
enacted at the whim of princes and rulers for their subjects to obey. Aristotle considered as Rule of Law
only that set of laws which was based on reason, and as Rule of Man that which was based on other
considerations.4 Many of these laws were not always just and fair. The “dura lex sed lex” maxim became
more of a threat rather than a tenet whereby people can seek redress for grievances.

Even now, the term Rule of Law has been so used and abused that it is slowly becoming a hollow
concept. But the “Rule of Law argument” should not be confused with the use of procedural maneuvers
which are allowed under certain rules or regulations. Dexterous juggling of procedural rules may
sometimes give an illusion of legality to an act, but could in fact be “suppression in a legalistic fashion,”
the very thing that is anathema to the Rule of Law. This fishy line of argument actually anchors on rules
rather than on law, and pertains to “rules” as a set of prescribed regulations, rather than to “rule” as the
authority for good governance. Rules are not supposed to subvert the law, and the law must conform to
constitutional limitations. Both must not be used as a shield to cover oppressive acts. The genuine
concept of Rule of Law is and should be an ideal that promotes and respects human rights.
Violations by “State actors”

States are abstract entities; they do not act on their own. States act through their agents, or “state
actors.” When a state actor violates the human rights of an individual, it is deemed a violation by the
State itself. Part 1, Chapter 2 of the Articles on State Responsibility provides the basis for State
accountability when a public officer violates the rights of an individual. This is the reason why demands
for human rights are made against the government when, for instance, a police officer fails to observe
the Miranda warning, or makes shortcuts in implementing the law, or manhandles a street
parliamentarian or violates a person’s right to privacy.

Violations by private individual

Individuals or groups can commit human rights violations and can be held liable for such. Individual
responsibility for human rights violations committed by private persons is treated and punished under
the criminal law system, a field of law which is very much intertwined with Human Rights Law, but is
offered as a separate subject in the Law curriculum. Thus, a person who deprives another of his life,
liberty, or property may be charged under penal laws for homicide, kidnapping, or robbery, for instance.
For that to happen, the act or omission must be defined and penalized under an existing domestic law,
otherwise the offender could not be held liable for it. Nulla poena sine lege (There is no crime if there is
no law punishing the act or omission).

In order that human rights violations committed by individuals who are not “State actors” can be
properly dealt with, it is necessary that:

a. The State, through its lawmaking body, must enact the appropriate laws to criminalize the
human rights violations; and

b. The State, through its lawmaking body, must enact the appropriate laws to criminalize the
human rights violations

State liability for human rights violations committed by “non-State actors”

State liability may attach for human rights violations committed by “non-State actors” if the State failed
to pass laws to protect its people from these violations, and to provide for adequate judicial remedy.
The State’s role as guarantor of human rights enjoyment and protection carries with it the obligation to
ensure that State actors and non-State actors do not violate them.

B. INTERNATIONAL STATE RESPONSIBILITY

Whenever a State ratifies a human rights treaty, it commits itself not only to observe the standards set
forth in the treaty and see to it that its agents do likewise, but also to enact domestic laws and
regulations in order to hold private individuals accountable. The traditional principle in international law
is that individuals are not directly bound by it, for individuals are not subjects of international law. By
ratifying a treaty, the State agrees to be bound by international law and thereupon incurs responsibility.
In turn, the State has to ensure that the obligations under the treaty are observed within its jurisdiction
by its people. Hence, the duty to enact the corresponding laws of local application.

The State's responsibility to ensure compliance with international human rights obligations does not end
with the enactment of local laws; it should also see to it that those aggrieved by the violations of these
laws must have adequate judicial remedy. It is thus important that its judiciary has the mechanisms, the
integrity, and the accessibility to dispense justice for victims of human rights abuses.

International State responsibility for internationally wrongful acts

In the international level, State liability may be incurred for internationally wrongful acts. The Articles on
Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission
in 2001, provides in Article 1 that, “Every internationally wrongful act of a State entails the international
responsibility of that State.”

Article 2 of the Articles enumerates the following elements of an internationally wrongful act of the
State:

1.) The act or omission is attributable to the State under international law;

2) The conduct constitutes a breach of an international obligation of the State.

The State responsibility extends to acts committed by instrumentalities of the State. Persons and entities
which have the status of organs in the internal law of the State are included in the term “State organs.”
So also, are persons and entities who, although not organs of a State, are empowered by a law of that
State to exercise elements of governmental authority.

Article 4 expressly provides that, “The conduct of any State organ shall be considered an act of that
State under international late, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its character of the
central organ of the government or of a territorial unit of the State.”6

States also incur liability if they fail to prevent private individuals or groups from violating the human
rights of others. In its Comment, the UN Human Rights Committee stated that, “The positive obligations
on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by
the State, not just against violations of Covenant rights by its agents, but also against acts committed by
private persons or entities that would impair the enjoyment of Covenant rights in so far as they are
amenable to application between private persons or entities. There may be circumstances in which a
failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of
those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to
exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private
persons or entities. States are reminded of the interrelationship between the positive obligations
imposed under article 2 and the need to provide effective remedies in the event of breach under article
2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive
obligations on States Parties to address the activities of private persons or entities. For example, the
privacy related guarantees of article 17 must be protected by law. It is also implicit in article 7 that
States Parties have to take positive measures to ensure that private persons or entities do not inflict
torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields
affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from
discrimination within the meaning of article 26.”

In the landmark Velasquez-Rodriguez case7 the Inter-American Court of Human Rights found that the
victim Manfredo Velasquez

Disappeared in the “hands of or with the acquiescence” of Honduran officials within the framework of a
pattern or practice which was established. The Honduran government’s failure to conduct an
investigation on the disappearance, compounded with allegations of attempts to thwart the victims’
plea for an investigation, was deemed an indication of government’s involvement in the disappearance.
In this case, the Court relied on circumstantial evidence, it being assumed that direct evidence of the
kidnapping would be unavailable, having likely been suppressed by the government itself. It held that
under International Law, an impairment of the human rights of a person which is attributable to public
authority, “constitutes an act imputable to the State, which shall assume responsibility.”
Derivative State responsibility for complicity

The general rules on attributing State Responsibility were mentioned earlier, i.e., (a) direct responsibility
of the State committed by State actors, and (b) responsibility for acts committed by non-State actors
when the State failed to pass laws, prevent and punish violations, and to provide adequate legal
remedies. So, the next question is, can a State be held liable for the acts of another State?

Under our domestic criminal laws, a person can be held liable for the acts of another by reason of
conspiracy, or when he contributes to the commission of the crime or to the success of the criminal as a
principal, accomplice, or accessory. To be considered such, he must have performed an overt act. As a
rule, mere presence at the scene of the crime or acquiescence to the act is not punished.

Under International Law, a State may be held liable for a human rights violation even if it did not directly
commit the act constituting the violation, provided that it assisted in the commission of the act or
allowed it to happen, similar to a conspirator, accomplice, or accessory in our criminal law. Articles 16
and 17 of the Articles on State Responsibility provide for “derivative responsibility,” which is present
where (a) the State aids and assists in the commission by another of the internationally wrongful act
and, (b) the State exercises direction and control over the commission of the act.

The principle of State Responsibility through complicity probably originated from the Nuremberg
Principles, which states in Principle VIV that, “Complicity in the commission of a crime against peace, a
war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.”

In the case of Nicaragua vs. United States of America,8 the United States was held liable for violation of
customary international law on non-interference in the affairs of another State for “training, arming,
equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding
military and paramilitary activities in and against Nicaragua.” For this reason, the United States was
ordered to make reparations for the injury caused by such violation.

However, on the other issue ofwhether the United States should likewise be held liable for producing
and distributing a manual to the guerillas that tended to incite them to fight the Nicaraguan
government, the ICJ held that the United States violated
The general principles of humanitarian law by such acts, but found no basis to hold it liable for the
crimes committed by the guerillas.

It should be emphasized that the Nicaragua ruling focused on State liability by reason of complicity,
which should not be confused with the ICTY ruling in the Delalic case applying the “overall control test”
in order to determine whether the armed conflict was international or internal.

D. PHILIPPINE CASES ON STATE RESPONSIBILITY

Prohibition on unreasonable searches and seizures is a restraint against the State, and not against
private individuals

In the case of People vs. Andre Marti, 9 the accused was convicted for violation of the dangerous drugs
law when he attempted to ship marijuana through a courier. It was found out upon inspection by the
courier as part of standard operating procedure that the package be admitted as evidence even if these
were products of a search conducted without a warrant, because the person who conducted the search
was a civilian, not a government agent. It ratiocinated thus:

“The constitutional proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the law. Thus, it
could only be invoked against the State to whom the restraint against arbitrary and unreasonable
exercise of power is imposed.”

“And again, in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure
clauses are restraints upon the government and its agents, not upon private individuals (citing People v.
Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State
v. Olsen, or., 317 P.2d 938 (1957).”

“For one thing, the constitution, in laying down the principles of the government and fundamental
liberties of the people, does not govern relationships between individuals.”
“Similarly, the admissibility of the evidence procured by an individual effected through private seizure
equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant’s
constitutional rights to privacy and communication.”

Justiciability of the solidary right to a healthy environment

In the landmark case of Oposa vs. Factoran,10 the Philippine Supreme Court recognized the human right
of the children petitioners to a balanced and healthful ecology and of the State’s duty to protect that
right, not only for the petitioners, but also for “generations yet unborn,” thereby laying down the
principle that the solidarity

Right to a healthy environment is a justiciable issue that can be properly raised before the courts of law
in our jurisdiction.

This is particularly significant because this right is a newly evolved right, a “third generation” right, and
because in the international arena, there had been much debate, still unsettled up to this time, as to
who has responsibility for violations of solidarity rights, in the spate of disasters brought about by
corporate negligence.

In the Oposa case, the petitioners were all minors, suing through their parents. They asked the Court to
have the Secretary of Environment and Natural Resources cancel the Timber License Agreements (TLAs)
issued by him and to cease and desist from further issuances, claiming that these would be violative of
their right to self-preservation and perpetuation.

The Supreme Court laid down the Doctrine of Intergenerational Responsibility in this case. This means
that the present generation holds the natural resource treasures of the earth in trust for the benefit,
enjoyment, and use of the generations of humankind yet to come, and the State has the responsibility
to protect and see to it that this be realized.

The case was brought against respondent Factoran, in his capacity as the Secretary of the Department of
Environment and Natural Resources, thus ascribing responsibility to the State the acts of its officials.
Although what constituted potential human rights violations were activities of private corporations and
business entities, the State has the power to regulate these activities, and it is the exercise of this power
which is the crux of the controversy. Because the private business entities were not impleaded in the
case, the issue zeroed in on State Responsibility to protect the human right to a clean and healthy
environment.

It would have been a lot trickier if the case involved private entities or corporations, especially when the
corporations are “citizens” of another country. In the case of transnational corporations which operate
in many countries other than that where it is a national of, accountability may be diffcult to enforce and
state responsibility may be hard to determine.

The norms for the responsibility of transnational corporations for violations of human rights are still to
be formalized. Efforts are ongoing for the adoption of U.N. Doc. E/CN.4/Sub.2/2003/L.11 at 52 (2003)
(“The Norms on the Responsibilities of Transnatinal Corporations and other Business Enterprises with
regard to Human Rights”), which was approved in August 2003 by the UN SubCommission on the
Promotion and Protection of Human Rights.

The Writ of Kalikasan

The human right to a balanced and healthful ecology got another boost with the issuance of the Rule of
Procedure on Environmental Cases, A.M. No. 09-6-8-SC, particularly Rule 7 on the Writ of Kalikasan.

The writ is "a remedy available to a natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public interest group accredited by or registered
with any government agency, on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public
official or employee, or private individual or entity, involving environmental damage of such magnitude
as to prejudice the life, health or property of inhabitants in two or more cities or provinces.”

E. COMMAND RESPONSIBILITY

Liability for violations of human rights, in the same manner as criminal liability under the Revised Penal
Code, may be incurred by an act or omission. The offender can be made to answer for his act, as well as
for his inaction, when such act or inaction results in human rights violation. The failure of a superior
officer to stop human rights violations committed by his subordinates, though absent a showing that he
directly ordered the commission of these acts, could still make him liable as well for such acts, under the
Doctrine of Command Responsibility.

The Yamashita Standard

One of the earliest and most internationally persuasive decisions on this is a case originating from the
Philippines, later on elevated to the United States Supreme Court.

In Re Yamashita 12 is a case involving General Tomoyuki Yamashita, the commander of the Japanese
Imperial Army in the Philippines. He was charged for violations of the laws of war by “unlawfully
disregarding and failing to discharge his duty as a commander to control the acts of members of his
command by permitting them to commit war crimes.” There were allegations that the Japanese army
under his command engaged in a “deliberate plan to massacre and exterminate a large part of the
civilian population of Batangas Province as a result of which more than 25,000 men, women, and
children all unarmed noncombatant civilians, were brutally mistreated and killed.”

A military commission heard the case of Yamashita. Upon conviction, Yamashita applied for a writ of
habeas corpus before the Philippine Supreme Court, wherein he assailed the commission’s lack of
jurisdiction, among others. The Philippine Supreme Court denied his application and ruled that the
Commission was validly constituted. The case was elevated to the U.S. Supreme Court, which found
Yamashita guilty and sentenced him to death. The Court ruled that under International Law on the law
of war, violations of war “have to be avoided through the control of the operations of war by
commanders who to some extents are responsible for their subordinates.” As commander, General
Yamashita was under an “affrmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the civilian population.”

The Yamashita ruling resulted in a new legal standard, so to speak, governing command responsibility,
which gained considerable international acceptance as part of international customary law. The
“Yamashita Standard” was applied in some decisions, although there are criticisms against it, such as its
doubtful applicability in cases where those charged are commanders of armies of entities which are not
recognized as States. For instance, the International Criminal Tribunal of the former Yugoslavia (ICTY)
made no reference to this standard in the cases brought before it, and understandably so, because the
circumstances surrounding such cases are different.
A similar standard, known as the “Medina Standard,” was adopted based on the prosecution of US Army
Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. In that case
however, Medina was acquitted.

Under the Rome Statute, a “military commander or person effectively acting as a military commander
shall be criminally responsible for crimes committed by forces under his or her effective command and
control, or effective authority and control as a result of his or her failure to exercise control properly
over such forces. This will be discussed more extensively under Chapter XVI.

SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW

Article 38(1) of the Statute of the International Court of Justice (ICJ) enumerates the sources of human
rights laws as follows, to wit:

 International conventions;

 International custom, as evidence of a general practice accepted as law;

 General principles of law recognized by the community of nations (referred in the Statute as
“civilized nations”). Nos. 1 to 3 are considered the principal sources of international law;

 Judicial decisions and the teachings of the most highly qualified publicists (as subsidiary means
for the determination of rules of law).

A. INTERNATIONAL AGREEMENTS

International agreements, more commonly known as “treaties,” usually are officially called conventions
or covenants. The Vienna Convention on the Law of Treaties defines a treaty as a “legally binding written
agreement concluded between States.” A supplement or subsequent agreement relative to an existing
treaty is usually referred to as “protocol.” Thus, the “Palermo Convention” refers to the original treaty
which is the United Nations Convention Against Transnational Organized Crime, while the “Palermo
Protocols” refer to the subsequent treaties entered into by the states to supplement the original treaty
and which deal on specific crimes, e.g., human trafficking, smuggling of migrants, or arms trafficking.
A State’s consent to be bound by a treaty is expressed through ratification, approval or acceptance.
Generally, the act of merely signing a treaty is not enough to bind the State. Once a treaty is ratified, the
State is bound to faithfully comply with its treaty obligations under the doctrine of “pacta sunt
servanda.” But unlike other treaties where liability arises only where there is bad faith on the part of a
State, in human rights treaties there can be liability even in the absence of bad faith.

The core international human rights treaties are:

 International Convention on Civil and Political Rights (ICCPR, entered into force on March 23,
1976) with 2 Optional Protocols;

 International Convention on Economic, Social and Cultural Rights (ICESCR, entered into force on
January 3, 1976);

 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(CAT, entered into force on June 26, 1987);

 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD,

entered into force on January 4, 1969);

 Convention on the Rights of the Child (CRC, entered into force on September 2, 1990) with 2
Optional Protocols;
 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, entered
into force September 3, 1981) with 1 Optional Protocol;

 International Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families (entered into force July 1, 2003);

 International Convention for the Protection of All Persons from Enforced Disappearances
(adopted in 2006);

 International Convention on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities.

B. INTERNATIONAL CUSTOMARY LAW

To be considered international customary law, there must be:

[Link] objective element of acts amounting to “settled practice” of States; and

[Link] subjective element consisting of a “belief that this practice is rendered obligatory by the existence
of a rule of law requiring it” (opinio juris give necessitates or opinion juris or an opinion of law or
necessity).

In the cases of North Sea Continental Shelf,14 the International Court of Justice (ICJ) laid down the
Doctrine-Customary Law, and made clear the requisite objective and subjective elements.

Jus cogens

There is a unique class of customary laws that occupy the highest echelon in Human Rights Law
hierarchy, known as jus cogens (“compelling law”). This group of fundamental norms is superior to other
sources of international law and need not be agreed upon by States in a treaty in order to form part of
their jurisprudence. They are deemed to be interrogable as well.

The definition, elements, and effect of peremptory norms or “jus cogens” over treaties are contained in
the Vienna Convention on the Law on Treaties, which states that:

Article 53. Treaties conflicting with a peremptory norm of general international law (‘jus cogens’). A
treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law. For the purposes of the present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.”

From this article, we can derive the following elements of jus cogens, namely:

a. It is a peremptory norm of general international law;

b. It is accepted and recognized by the international community;

 c. There can be no derogation therefrom;

d. It can be modified only by a subsequent norm of general international law having the same
character.

The concept of jus cogens became controversial because of the difficulty in determining what is the
norm, considering that different States may have different cultural influences and different standards to
gauge what is peremptory norm. Among the universally-accepted norms are the rights against slavery,
genocide, acts of aggression, and racial discrimination.

The International Court of Justice (ICJ) settled some of the issues pertaining to jus cogens. In the case of
Nicaragua vs. the United States of America 15 decided in 1986, the ICJ reiterated the superiority of jus
cogens as a source of human rights. The ICJ ruled that the principle of non-use of force is jus cogens, so
that even if the UN Charter and the treaty were not applicable in the case, the ICJ may still rule on that
issue. In this case involving the Unites States, the latter did not ratify the applicable treaty and did not
make a categorical acceptance of the jurisdiction of an international court. Jurisdictional questions
notwithstanding, the ICJ still ruled on the case against the United States because it involved a jus cogens
right.

Obligatio erga omnes

There is a category of international obligations known as obligations erga omnes. These are obligations
that are owed by States to all, regardless of the presence or absence of their assent to be bound
thereby. These obligations are intertwined with the concept ofjus cogens and usually arise from jus
cogens rights.

These obligations were first recognized in the obiter dictum in the case of Barcelona Traction Light and
Power Company (Belgium vs. Spain) which was decided by the International Court of Justice. In the
Barcelona Traction case, the ICJ made a distinction between the State’s obligation to the international
community and its obligations to another State in the field of diplomatic protection. If a State violates a
Treaty with another State and the treaty only pertains, for instance, to their bilateral agreement
regarding trade, that infringement is a private matter between the contracting

However, where human rights laws which are of paramount importance for the international
community are violated, all states have a legal interest in their protection, for they are obligations owed
by the State to the community of States. They are obligations erga omnes.

A respected human rights scholar, M. Cherif Bassiouni, whom this writer had the privilege of listening to
at a symposium on Human Trafficking at Johns Hopkins University in Washington, D.C. in November
2010, wrote about international crimes which are considered “jus cogens crimes” and which give rise to
erga omnes obligations of a State to prevent and prosecute. According to Prof. Bassiouni, the statute of
limitations does not apply to jus cogens crimes, and universal jurisdiction may even apply to these
crimes.

Universal jurisdiction

When discussing jus cogens rights and erga omnes obligations, reference is usually made to the concept
of universal jurisdiction.

This is because the principles of jus cogens and erga omnes transcend boundaries.

Under this principle, a State may prosecute a crime committed elsewhere if such crime is a jus cogens
crime. Belgium is responsible for the first widely-implemented law on universal jurisdiction, which it
passed in 1993. (In 2003, the law was repealed and substituted with another one on extraterritorial
jurisdiction.) Perhaps one of the best-known examples of the exercise of universal jurisdiction was the
issuance of a warrant of arrest by Spanish Judge Baltasar Garzon against former Chilean dictator
Augusto Pinochet for crimes committed in Chile against Spanish citizens, which warrant was
implemented in the United Kingdom. In Europe, members of the European Union also adopt the
European Arrest Warrant Scheme, and in the United Kingdom, they have the Commonwealth Extradition
Scheme.

The concept of universal jurisdiction has met a lot of criticisms from very influential statesmen including
Henry Kissinger because it is deemed an intervention of a state’s sovereignty over its [Link] initial
fervor that welcomed the concept has waned over the years, although some sectors are still vigorously
pursuing its application by States on certain select crimes. The creation of the International Criminal
Court (ICC) and other international criminal tribunals also reduced the need for the exercise by
individual States of universal jurisdiction.

Actio popularis

Prosecution of jus cogens crimes may be initiated by another person or group of persons for the benefit
of another through a complaint actio popularis. Non-government offices (NGOs) of good standing in the
international community may be allowed to sue for and on behalf of victims who do not have the means
to do so. Complaints actio popularis do not necessarily arise from erga omnes obligations: the term erga
omnes refers to obligations of States to the international community, while actio popularis is a rule of
procedure in bringing a suit on another’s behalf. However, these are terms which are usually used
together in the course of the discussion on jus cogens rights and erga omnes obligations.

C. GENERAL PRINCIPLES OF LAW

General principles of law are unwritten, and uncodified concepts from which laws are based. A principle
of law may evolve from local or municipal jurisprudence of a State which is adopted by other States,
from teachings and publications, and from works of experts.

An example of a body of principles of law originating from experts’ views is the Yogyakarta Principles on
the rights of lesbians, gays, bisexuals and transgenders (LGBT). While the Yogyakarta comprises mostly
of human rights principles already embodied in other treaties and are considered fundamental human
rights of every individual regardless of sex (such as the rights to marry and to found a family), these
rights become controversial where it refers to LGBT, simply because of traditional gender stereotyping.
The Yogyakarta Principles is still in its infancy and many States are still not wont to adopting it, especially
those whose governments are deeply influenced by religion. It will likely take a long time before it will
evolve into being part of “generally-accepted principles of law,” and probably only in certain regions of
the world.

In many instances, the United Nations is responsible for pushing for studies and researches on issues of
international concern, for providing an avenue for international discussion, and for adopting principles
relative to such issues.
The Incorporation Clause

The Philippine Constitution “adopts the generally accepted principles of international law as part of the
law of the land. This is referred to as the incorporation clause. This means that the Philippines has the
obligation to observe generally accepted principles of international law not only as customary law but
because of the express provision of the incorporation clause in the Philippine Constitution.

In Kuroda vs. Jalandoni, the Philippine Supreme Court ruled that the Military Commission created by the
President of the Philippines which tried General Shigenori Kuroda of the Japanese Imperial Army for the
war crimes committed in Philippine territory during World War 2, was valid and constitutional by virtue
of the incorporation clause in Article 2 of the Philippine Constitution. That, despite the fact that the
Philippines was not a signatory of The Hague and Geneva Conventions at that time.

D. JUDICIAL DECISIONS AND TEACHINGS

International case law is recognized in Article 38 of the Vienna Convention on the Law on Treaties as a
subsidiary means for the determination of rule of law.

International case law may consist of judgments of international tribunals, the regional courts and even
domestic courts, although international tribunals rarely look to decisions of domestic courts in ruling an
international dispute. The teachings of the most highly qualified publicist may also be consulted in ruling
an international dispute.

The international and regional tribunals

a. International Court of Justice (ICJ)

The principal judicial organ of the United Nations Organization. It was established by the Charter of the
United Nations in June 1945 and began work in April 1946. It is based in The Hague, The Netherlands
(which is known as the “Legal Capital of the World”), and is the only UN organ located outside New York,
USA, where the UN has its headquarters.

At the ICJ, only member States may lodge complaints. Individuals are not recognized as parties in that
court. It exercises jurisdiction in two (2) kinds of cases:

I. Contentious cases — Cases submitted by State Members of the UN, or other States which
are parties to the Statute of the Court or which have accepted its jurisdiction; and

ii. Advisory proceedings — Requests for advisory opinions on legal matters submitted by UN organs and
specialized agencies.

The official languages in the ICJ are English and French. It is composed of 15 judges, who are elected for
terms of office of nine (9) years by the United Nations General Assembly and the Security Council. It is
assisted by its administrative organ known as the Registry.

While individuals still do not have a jus standi to bring a complaint before the ICJ, they may be
beneficiaries of such suit, which can be brought in their behalf by a State.

The Barcelona Traction case (Belgium vs. Spain)18 decided by ICJ is noteworthy because the court laid
down two (2) important doctrines:

i. A State can bring the case for the benefit of a corporation; and

ii. It made an obiter dictum recognizing and expanding the meaning of erga omnes obligations.

In this case, Belgium brought the case in behalf of Belgian nationals who were investors in a Toronto-
registered company which was doing business in Spain. Although ICJ ruled that Belgium had no jus
standi to bring the suit, it pronounced that Canada would have such right to bring the suit for the benefit
of the corporation.

b. International Criminal Court (ICC)

A court created by the Rome Statute of the International Criminal Court on July 17, 1998. It is also based
in The Hague, The Netherlands. The ICC is an independent permanent international criminal court. The
ICC is known as a court of last resort, and will only try cases after the exhaustion of remedies before
domestic courts, and only for the gravest offenses.

The cases which may be tried at ICC are:

i. Crimes against humanity, such as terrorism;

ii. War crimes (which can be committed only by members of the military);

iii. Genocide; and

iv. Crimes of aggression.

c. Ad hoc criminal tribunals

 i. International Criminal Tribunal of the former Yugoslavia (ICTY);

ii. International Criminal Tribunal for Rwanda (ICTR).

There were also the Nuremberg Tribunal (prosecution of major war criminals of the Nazi empire) and
the Tokyo Tribunal (for atrocities committed during World War Il by the Japanese Imperial Army.)

The decisions of the Nuremberg Tribunal were particularly instructive, primarily because the tribunal
was one of the early war crimes courts, and secondarily because of the controversial personalities tried
in that court. The Nuremberg Principles continue to have persuasive effect to this day.

d. Regional Courts

i. European Court of Human Rights (ECHR) based in Strasbourg, France, is also known as the
Strasbourg Court. This was created by the Convention For the Protection of Human Rights
and Fundamental Freedoms, which was signed in Rome on November 4, 1950. The same
treaty also created the European Commission of Human Rights (ECHR). Presently,Individuals
may bring a suit directly to the EC+HR, as provided under the 11th Protocol to the ECHR
which came into force on November 1, 1998.

ii. Inter-American Court of Human Rights (IACHR) based in San Jose, Costa Rica, was
established by the American Convention on Human Rights of 1969. Under the new Rules of
Procedure adopted in 2000 and in force starting June 1, 2001, individual complainants are
now granted locus standi in judicio before the IACHR. However, a Declaration of Acceptance
by the State Party to the American Convention is necessary in order for the IACHR to
exercise its jurisdiction on a complaint filed against that State. The United States of America
has not made such Declaration.
 iii. African Court of Human and People’s RightsCACHPR) was created under the Protocol to the
African Charter on Human and People’s Rights on the Establishment of an African Court on
Human and People’s Rights, which entered into force in 2004. It was not created by the
original African Charter (Banjul Charter), although said Charter created the African
Commission on Human and People’s Rights.

Actio popularis is allowed under the African system (non-victims may bring the suit in behalf of the
victims). This aside from the system whereby States may bring a complaint against another State; and
the State Reporting mechanism.

There is no Asian human rights court yet, although ASEAN human rights advocates were successful in
engineering the creation of the ASEAN Human Rights Commission in October 2009. The reason
advanced for this failure to come up with such a court in Asia is the cultural diversity of the peoples in
this region. This, however, was debunked by some Asian human rights scholars, particularly Xiarong Li,
who maintained that human rights are universal and not “culturally specific”.

e. Hybrid or internationalized courts

These are courts which are a mix of domestic and international, both in the judges and staff as well as
the laws applied, BUT they either are integrated in the domestic judicial system or appended to it.
Examples are:

i. Sierra Leone — The Special Court for Sierra Leone.

ii. Cambodia — Known as the Extraordinary Chambers in the Courts of Cambodia, this court
was created to address crimes committed by the Khmer Rouge.
 iii. East Timor — Special Panels of Serious Crimes.

iv. Kosovo — Known as “Regulation 64” Panels in the Courts of Kosovo.

The recent demilitarization of Myanmar (Burma) and the transition of its government to a more
democratic system could bring about prosecutions for human rights abuses committed by the previous
leadership of the military junta.

Teachings of jurists and publicists

The teachings of highly qualified jurists and publicists is a subsidiary means of determining international
human rights law. In the case of the international laws of armed conflict, the declaration of the Russian
delegate Fyodor Fyodorovich Martens to the 1899 Hague Convention on the Laws and Customs of War
on Land, became a guiding principle of sorts in determining how States should conduct themselves
during wartime when there are no specific rules enacted which apply to the situation.

Known as the Martens Clause, it forms part of the Preamble of the 1899 Hague Convention, the
wordings of which are as follows:

“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to
declare that in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of humanity and the requirements of the
public conscience.”

The International Criminal Tribunal of Afghanistan

The International Criminal Tribunal of Afghanistan which convicted US President George W. Bush on
March 13, 2004 in Tokyo, is not an official tribunal. It is a people’s tribunal founded on the international
criminal law and international humanitarian law.

The Kuala Lumpur War Crimes Commission

In May 2012, former US President George W. Bush, former Vice-President Richard Cheney, Donald
Rumsfeld and legal advisers Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo
were tried and convicted in absentia in Malaysia for war crimes by the Kuala Lumpur War Crimes
Commission, an initiative of former Malaysian Prime Minister Mahathir Mohammad. This tribunal is
similar to the International Criminal Tribunal of Afghanistan and is not official.

THE INTERNATIONAL BILL OF RIGHTS

On December 10, 1948, the United Nations General Assembly (UNGA) adopted and proclaimed the
Universal Declaration of Human Rights (UDHR). It “called upon all Member countries to publicize the
text of the Declaration and ‘to cause it to be disseminated, displayed, read and expounded principally in
schools and other educational institutions, without distinction based on the political status of countries
or territories.’”21

The Universal Declaration of Human Rights and two (2) other human rights treaties are collectively
known as the International Bill ofRights.22 The two (2) treaties are the International Convention on Civil
and Political Rights (ICCPR) and its two (2) protocols, and the International Convention on Economic,
Social and Cultural Rights (ICESCR). (On the other hand, the Convention on the Elimination of All Forms
of Discrimination Against Women or CEDAW is also known as the International Bill of Rights for
Women.)

This Chapter will present the instruments consisting the “International Bill of Rights” and will give an
introduction of the rights and freedoms embodied therein. A brief discussion on the legislation and
application of such rights and freedoms in the Philippines will be made.

A. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

The primary human rights instrument, the Universal Declaration of Human Rights (UDHR), is not a
treaty. The United Nations General Assembly (UNGA) enacted UDHR as a resolution, thus legally it has
the force and effect only of a recommendation, which is considered “soft law,” and which traditionally
would have lacked binding effect upon States. It, however, has been observed by States as if it were a
treaty, and has since evolved into general principles off international law.

The document was drafted by the first United Nations Commission on Human Rights, then chaired by
Eleanor Roosevelt. The Philippines was in the sixteen-member Commission. John Humphrey of Canada
wrote the first draft (“Humphrey Draft”). The final draft (“Cassin Draft” or “Geneva Draft”) which
provided the structure of the Declaration was composed by Rene Cassin of France. It is considered the
most translated document in the universe.

UDHR contains a Preamble and 30 articles. Among the notable declarations found in the Preamble of
UDHR are:

i. That human rights are inalienable rights of all members of the human family;

ii. The recognition of human rights is the foundation of freedom, justice, and peace in the
world;

iii. The freedoms of speech and belief as well as the freedom from fear and want are the
highest aspiration of the common people;

iv. Rebellion against tyranny and oppression is recognized as a last resort where human rights
are not protected.

The Universal Declaration of Human Rights (UDHR) recognizes not only the civil and political rights of a
person but also his economic rights, such as employment, food, shelter, social security, etc.; social
rights, and cultural rights. Solidarity rights are also recognized in the Declaration. The Bill of Rights in the
1987 Philippine Constitution provides for similar guarantees to human rights as those provided in the
UDHR, and almost with the same wordings used as the latter.
B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR) was adopted and opened for signature,
ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966. It was
entered into force on March 23, 1976, in accordance with Article 49 thereof. The Philippines signed it
three (3) days after it was opened for signature on December 19, 1966, but it was not until twenty (20)
years later, on October 23, 1986, when it was ratified.

ICCPR has two (2) additional protocols:

i. The First Optional Protocol, which entered into force on March 23, 1976, provides for the
jurisdiction of the Human Rights Committee to receive and consider communications from individuals
who claim to be victims of human rights violations set forth in the ICCPR. This was ratified by the
Philippines on August 22, 1989.

ii. The Second Optional Protocol, which entered into force on July 11, 1991, is aimed at the
abolition of death penalty. This was ratified by the Philippines on November 20, 2007, after it passed
Republic Act 9346 abolishing death penalty in June, 2006.

In both documents, UCCPR and ICESCR, the first article is on the right of self-determination, by virtue of
which peoples may "freely determine their political status and freely pursue their economic, social and
cultural development."

ICCPR has a compliance and monitoring mechanism which is the Human Rights Committee. (The Human
Rights Committee should not be confused with the Human Rights Council a UN Council under the UN
General Assembly, or the defunct Human Rights Commission under the ECOSOC, which the Committee
replaced.) The Committee shall be discussed more thoroughly in Chapter VII, where relevant cases
involving the Philippines will be presented.

C. NTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ICESCR)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted and opened
for signature, ratification, and accession by General Assembly Resolution 2200A (XXI) Of 16 December
1966. It entered into force on January 3, 1976, in accordance with Article 27 thereof. The Philippines
signed it at the same time as ICCPR on December 19, 1966 and ratified the covenant on June 7, 1974.
The ICESCR has a reporting mechanism called the Committee on Economic, Social and Cultural Rights
(CESCR). There is one optional protocol to the ICESCR, which opened for signature and ratification on
December 10, 2008. It has not yet entered into force as it only has eight (8) ratifications thus far,
whereas it needs at least ten (10) member States to ratify the same. The Philippines has not yet signed
nor ratified the protocol as of this writing. The optional protocol provides for the jurisdiction of the
Committee on Economic, Social and Political Rights (CESCR) to receive and consider communications
from individuals and groups claiming to be victims of violations of any of the rights set forth in ICESCR.

D. RIGHTS AND FREEDOMS UNDER THE INTERNATIONAL BILL OF RIGHTS

d.1 Equality in dignity and rights

The Universal Declaration of Human Rights starts with the declaration of equality of all human beings in
dignity and rights in Article 1, thus laying down at the outset the most fundamental and basic rules for
the enjoyment by every person of his human rights: the respect and protection that each human being
deserves.

The International Covenant on Civil and Political Rights (ICCPR) echoes this declaration in its article 3,
stating that "The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the present Covenant."

This declaration ensures that every human is entitled to his/ her rights regardless of sex, race, religion,
status in life or political beliefs, and that no one enjoys preference or priority over another in the
entitlement of human rights. This does not necessarily translate to uniformity of rights, for different
classes of persons may have different rights (e.g., children, indigenous peoples) but rather to equal
opportunity to enjoy human rights.

d.2 Right to life, liberty and security

Probably the most discussed article in the Universal Declaration of Human Rights is Article 3, which
provides that "Everyone has the right to life, liberty and security of person." It encapsulates the key
political and civil rights of a person that must be protected by the State.

Although positive wording is used, the article actually is a negative right in that it restrains the State
from violating a person's life, liberty and security. Article 6 of the ICCPR states the right to life using both
positive and negative wording, thus "Every human being has the inherent right to life. The right shall be
protected by law. No one shall be arbitrarily deprived of his life." Article 9 of the same covenant also
uses positive and negative wording in respect to the right to liberty and security, thus: "Everyone has the
right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”

The Philippine Constitution contained a similar provision in its Bill of Rights. Article 3, Section 1 thereof
provides that, "No person shall be deprived of life, liberty or property without due process of law, nor
shall any person be denied the equal protection of the laws."

An interesting question is, can the right to life be waived? Does the right to life include the right to end
one’s own life? In short, does a person have the right to die? There are two (2) interesting cases in the
United Kingdom which deal on the issue.

In the case of Pretty vs. UK, decided April 29, 2002,23 Mrs. Diane Pretty petitioned the European Court
of Human Rights (Application No. 2346/02) to be allowed to commit suicide with the help of her
husband Brian. Mrs. Pretty, then 43, was suffering from advanced stage of motor neuron disease which
paralyzed her from the neck down. She argued that she had the right to life as well as the right to die.
The Court ruled that the petitioner did not have the right to die, and that no such right can be derived
from the right to life.

On the very same day that Mrs. Pretty’s case was decided by the European Court, also known as the
Strasbourg Court, another terminally-ill patient, identified only as Miss B, ended her life in a hospital in
UK with the removal by doctors of the ventilator which supported her after she was given the go-signal
by the UK court.

Although there was an apparent inconsistency in the decisions in the two (2) cases, medical ethicist Dr.
Gillian Craig observed that there was really a marked difference between the two (2): in the case of Miss
B, she wanted medical treatment to be stopped (she had the right to refuse medical treatment), while in
the case of Mrs. Pretty, she wanted to be killed.

The right to liberty and security is further enunciated in Articles 9 and 10 of ICCPR. Article 9 states that
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.”

Clearly, the right to liberty and security is not absolute and may be restricted on valid grounds, such as
the imprisonment of a convict by way of penalty for the commission of an offense, or the hospitalization
of insane persons. In the case of persons detained during the pendency of a criminal proceeding for
which no bail is recommended, or if one is recommended, the same is not given, the restriction of
liberty is done to assure that the accused will not abscond and defeat the proceedings.

Article 10 (1) of ICCPR states that, “All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person. “ The aim ofimprisonment shall be the
reformation and rehabilitation of the convicts. Juveniles shall be separated from adult prisoners, and
convicts shall be separated from pre-trial prisoners or those whose cases are still being tried.

Article 10(2) of ICCPR provides for a separate treatment for convicts from those still undergoing trial,
also called pre-trial prisoners. The latter enjoys the right to be presumed innocent until the contrary is
proved. Pre-trial prisoners are detained in centers run by local government units such as the Cebu
Provincial Detention and Rehabilitation Center (CPDRC) or the Bureau of Jail Management and Penology
under the Department of Interior and Local Government (DILG); whereas convicted prisoners are usually
transferred to detention facilities or penal colonies operated by the Bureau of Corrections under the
Department of Justice (DOJ). The use of the word “Penology” for the DILG-run facility is not accurate
because, to repeat, the facility is mainly for pre-trial prisoners who are not yet “penalized,” and the only
convicts supposed to stay in those facilities are those with minor sentences which may fall anyway
under the Probation Law.

The temporary incarceration of pre-trial prisoners not being considered penalty, and still possessing the
right to be presumed innocent at this stage, they may continue to exercise other political rights, such as
the right to suffrage. It is incorrect to deprive a pre-trial prisoner of personal belongings that are
necessary for his personal comfort if these do not compromise the security and safety in the detention
facility. He is not yet being punished, unlike a convicted prisoner. Therefore, unless security is an issue,
pre-trial prisoners who can provide themselves with their own blankets and pillows or such reasonable,
no-frills basic personal necessities, should not be denied such and be condemned to suffer the
miserable, sometimes inhuman conditions of prison just because their government cannot give them
decent accommodation.

That is not to say that convicted prisoners are doomed to rot in decrepit jails either. Article 10(1) which
speaks of humane treatment and respect applies to “all persons deprived of their liberty.” There may be
a difference in the treatment and rehabilitation program of these prisoners from pre-trial prisoners
because there is now a penal nature and punitive objective to the incarceration.

D.3 Right against slavery

Article 4 of UDHR and Article 8 of ICCPR provide that “slavery and the slave trade shall be prohibited in
all their forms.” It is not necessary that there be an “owner-chattel” relationship between the
perpetrator and the victim, as was in the past. Under the old concept, slaves were considered property
which makes up a person’s wealth. They were not considered “persons,” and therefore could not
acquire a citizenship. The modern forms of slavery may not exactly be of the same type. In human
trafficking which is known as “modern day slavery,” the important factor is exploitation. Todays
trafficked persons may have some degree of freedom and choice, and may have even initially sought out
or voluntarily agreed to be recruited. They may even have paid their way into the recruitment process.
When these persons start to get exploited, whether for debt bondage, sexual commercialism, organ
trafficking and similar purposes, there is human trafficking victimization.

The right against slavery is jus cogens, a higher level of human right. States cannot validly enter into a
treaty to the contrary. The jus cogens right against slavery includes “all forms” of slavery, such as human
trafficking.

ICCPR’s Article 8 states that the term “forced or compulsory labour” shall not include work or service
required of a prisoner, or of a military nature, or which forms part of normal civil obligations, or
necessary during calamities. It does not preclude the performance of hard labour as part of a penalty for
a crime.

The pertinent Philippine laws on slavery and other forms of slavery are Articles 272, 273 and 274 of the
Revised Penal Code, Republic Act 9231 on the Elimination of Worst Forms of Child Labor, Republic Act
9775 against Child Pornography, and Republic Act 9208 against Trafficking in Persons.

Trafficking in persons

The applicable treaty on human trafficking is the Protocol to Prevent, Suppress and Punish trafficking in
Persons, Especially Women and Children, also known as the

Palermo Protocol. This treaty is one of three (3) “daughter” treaties of the United Nations Convention on
Transnational Organized Crime, also known as the Palermo Convention.

As a form of slavery, human trafficking is a crime against humanity when committed as part of a
widespread or systemic attack. The Rome Statute of the International Criminal Court specifically includes
trafficking in persons in the enumeration of acts constituting crimes against humanity.

Many human rights scholars believe that crimes against humanity should be covered under the
“universal jurisdiction” scheme in the same way that Piracy on the high seas is so covered and pirates
are treated as hostis humani generis, regardless of the territorial jurisdiction of the forum State or
membership to the International Criminal Court (ICC) of the pirates’ Country. This makes a lot of legal
sense because human trafficking is a crime oftentimes committed across borders. One of the essential
elements of this crime is “exploitation,” an element which may not be discoverable at the place of
origin, and is consummated only at the place of destination. Different places have different laws and
different penalties and different procedures, and prosecution in one State may be easier compared to
another. If human trafficking is a jus cogens crime, then all States shall have the erga omnes obligation
to prosecute or cooperate in the successful prosecution of this case, place of commission and territorial
jurisdiction notwithstanding.

In terms of domestic legislation, the Philippine law against human trafficking is the first in Southeast Asia
and is probably one of the best in the world. republic Act 9208 (RA 9208) is thorough and treaty-
compliant, and its implementing rules are well-defined and widely participated in by multiple agencies
and stakeholders. Many arrests and successful prosecutions were accomplished under RA 9208, but it is
believed that this is just a tip of the iceberg.

While the network of anti-human trafficking forces has been successful domestically, human trafficking
involving Filipino overseas workers, has yet to be sufficiently addressed. There had been incidents of
trafficking of Filipinos in many countries including Malaysia, the Middle East and the United States. In
some cases, arrests and prosecutions were made resulting in convictions; in others, legal action is either
wanting or less successful.

In one case in Florida, around 50 Filipinos under the Guest Worker Program with H2B visas were
exploited and were fortunately rescued by the Florida Coalition Against Human trafficking (FCAHT) and
the Philippine Consulate in Florida, but the prosecution was for visa fraud rather than for human
trafficking. The victims claimed that they did not receive much help from the Philippine government.

Unlike Republic Act 9775, the law against child pornography, RA 9208 does not contain an express
provision declaring human trafficking as a transnational crime. It does not also provide for
extraterritorial application, unlike Article 2 of the Revised penal Code. Ag modern-day “slavery” which is
likely to evolve into a crime against humanity, human trafficking could be a jus cogens crime.

The perception of this author is that RA 9208 would afford more protection to its citizens if it were to
apply extraterritorially. The strongest argument in favor of this is that roughly ten percent (10%) of
Filipinos live and/or work abroad, and many Overseas Filipino Workers (OFW’s) have been trafficked
abroad.

In a case in Wan Chai, Hong Kong,27 two (2) Filipinos were convicted for human trafficking and
penalized for a maximum jail term of three (3) years. Seven (7) others who were arrested were deported
back to the Philippines. Even if these seven (7) others were less guilty than the two (2), there is a
possibility that they would serve a higher penalty than those who were convicted in the Hong Kong
court if they are charged under Philippine law.

One very controversial case which would have sprung a jurisdictional impasse, the veracity of which had
not been determined, is one involving Filipinos who were allegedly deceived and kidnapped from Kuwait
to the green zone in Iraq allegedly by a government contractor who was working on a construction of an
embassy building, and which triggered a Congressional Hearing at the Capitol Hill where a certain Rory
Mayberry testified. Mayberrys claims were, however, later disputed. Had this case developed, this
would have definitely been a diplomatic nightmare as the Philippines has no diplomatic relations with
Iraq and deployment of Filipino workers to that country is prohibited. On the other hand, the embassy
building in Iraq is within US jurisdiction. The likelihood is that the victims would be deported back to the
Philippines. In this event, an extraterritorial RA 9208 would likely address the situation.

The Philippines was in Tier 2 Watch List for a couple of years before it was elevated to the Tier 2 Status.
It must be noted that this ranking is not a United Nations ranking but rather is based on the trafficking
Victims Protection Act (TVPA), a United States federal law. Under this law, states are monitored and
ranked based on their efforts at curbing human trafficking.

In line with its commitment to promote a world free from human trafficking, the United States grants
financial assistance to States that make conscientious efforts to eradicate or minimize human trafficking.
Colombia, which does not have a dedicated unit for domestic trafficking cases unlike the Philippines, but
whose transnational efforts are maintained, is in Tier 1. This means that Colombia has complied with the
minimum standards. Also, Colombia’s definition of trafficking does not include the element of force,
fraud, or coercion, whereas the Philippine definition is more treaty-compliant.

d.4 Right against torture

Article 5 of UDHR and Article 7 of ICCPR state that, “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. “ Pursuant to these articles, the Convention Against
Torture, Cruel, Inhuman and Degrading Punishment (CAT) was subsequently adopted.

Torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.”

Aside from torture, acts constituting cruel, inhuman or degrading treatment or punishment are also
prohibited. There are acts which do not fall under the definition of torture and may not even involve any
physical pain or suffering, but are outrageously inhuman or insulting. For instance, the act of a lady
soldier named Lyndie England in making Iraqi prisoners in Abu Ghraib undress and tying them with a
leash like dogs may not fall under the term “torture,” but these acts are degrading, inhuman, and a
supreme insult to male Muslims.

The right against torture is non- derogable. States cannot derogate from it even in times of war or
emergency. No torture is justified, and States may not enter into treaties providing otherwise, as the
right against torture is also considered jus cogens.

Section 12(2) of the Philippine Constitution prohibits the use of torture upon any person under
investigation for the commission of an offense. In compliance with Article 4 of the Convention requiring
States to “ensure that all acts of torture are offences under its criminal law,” the Philippines passed
Republic Act 9745, otherwise known as the “Anti-Torture Act of 2009.”

d.5 Right to equal protection

Article 7 of UDHR provides equal protection of the law without any discrimination. This is mirrored in
Article 26 of ICCPR, which further provides that “the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.”

Equal protection does not mean that each and every person shall be treated in the same manner at all
times, regardless of differences of class and circumstance. Reasonable classification is allowed. For
example, in criminal law, minors are either exempt from criminal liability or only incur mitigated liability
when acting with discernment, as the minority diminishes the knowledge and voluntariness of the
offender in the execution of a crime. Women are also accorded more relief under statutes on domestic
violence by reason of age-old societal and cultural prejudices. In labor law, bias in favor of labor in the
interpretation of laws, rules and evidence is permitted.

The Philippine Supreme Court laid down the following requisites for reasonable classification:

i. It must be based on substantial distinctions which make real differences;

ii. It must be germane to the purpose of the law;

iii. It must not be limited to existing conditions only; and

iv. It must apply equally to each member of the class.

d.6 Right to effective judicial remedy

Article 8 of UDHR provides that, “Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the constitution or
by law.” Article 2, No. 3 of ICCPR exhorts States Parties to the Covenant to:
 i. “Ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy…”

ii. “Ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State”; and

iii. “Ensure that the competent authorities shall enforce such remedies when granted.”

Both articles do not just require States to have in place a “judicial remedy,” but also emphasize that it
must be “effective.” And a judicial remedy is not necessarily effective just because the rules sound
highfalutin or the remedy is dispensed by authorities with impressive credentials. More importantly it
must be just, accessible, free from corruption and influence-brokering, and speedy but with quality.
Speed without quality is nothing but haste and shortcuts borne out of laziness or insensitiveness.

A judicial remedy must be anchored on the principles of justice and due process. It must be free of bias
and must solely be based on the evidence presented. The proceeding must give equal opportunity for
the parties to prove their cause. The three (3) most dangerous enemies of fairness are corruption,
ignorance, and arrogance. Each one is lethal by itself, and a combination of the three (3) could result in a
complete breakdown of the people’s trust.

Access to justice

Section 11 of Article 3 of the Philippine Constitution provides that, “Free access to the courts and
adequate legal assistance shall not be denied to any person by reason of poverty.”

The term "access to justice" is commonly understood as the availability of legal assistance to the poor.
The programs closely associated with access to justice are the legal aid programs and pro bono services
rendered by lawyers, NGOs, law firms and lawyer’s associations.
In the Philippines, the creation of the Public Attorneys Office (PAO) and the establishment of the
Department of Justice Action Center (DOJAC) are sterling examples of the government’s effort to
achieve a more accessible judicial system. These institutions have been widely successful for having
reached out to the poor litigants even in remote areas, providing legal services to the common masses
with their pool of talented, hardworking, oftentimes idealistic young lawyers.

In its broad sense, access to justice does not only refer to government-paid legal assistance; it also
includes availability of information on where and how to get legal assistance, uncomplicated legal
procedures and laws that promote the faith in the judicial system. To be accessible, the process must be
inexpensive, the information, offices and courts must be within reach, and the procedure must be
simple. The trend now is to make the language in pleadings and motions simpler in order that the
litigants understand and be informed of their case. In many courts in the National Capital Region,
Tagalog is extensively used during hearings.

Access to justice is not always that easy in the real world. There are still laws and rules that are out of
touch with reality, or unmindful of geography that the country is composed of more than seven
thousand islands, not just a few cities. For example, Article 125 of the Revised Penal Code requiring the
filing of criminal cases in court within a specified number of hours may be impossible in places where
there are no courts or prosecutors' offices in the place of commission of the crime. In islets where
availability of transportation is dependent on the weather, it is either the arresting policemen will run
the risk of being sued by the prisoner for violation of Article 125, or sued by the victim for not detaining
the suspect.

The problem is compounded by the fact that crime laboratories, medical professionals and other offices
that need to issue certifications before a case can be filed in court or prosecutors’ offices are either far
from where some courts are located or do not have enough personnel to attend to litigants. The repeal
(in 2005) of the rule on the preliminary examination by the nearest Municipal Trial Court judge for the
purpose of issuance of the warrant of arrest before the Information can be filed with the proper court
has the effect of further alienating the victims of crimes from access to swift judicial recourse.

As a result, in many instances, law enforcers would not implement an arrest under Rule 113, Section 5 of
the Rules of Court if there is a lot of paperwork to be done. Chances are, they would prefer to file the
charges under the regular preliminary investigation where the respondent does not have to be arrested
immediately. This way, they can bide time to gather all the documentary evidence and certifications
needed for the filing of the case, ensuring a better chance at conviction. The downside is that the
suspect would remain at large and a security risk. Still, this is probably better than a frustrated litigant
deciding to take the law into his hands and resorting to vigilante justice. In fact, in some parts of the
country, difficulty in accessing meaningful justice could be one of the factors for a decayed peace and
order situation and a seeming culture of violence.
When access to justice is difficult to obtain, persons aggrieved by crimes may lose their faith in the
justice system. When a law or rule is not realistic, victims may not think that there is protection that can
be expected under that law. The law or rule would be seen as a barrier rather than a tool for obtaining
justice. Law enforcers may not be encouraged to catch criminals, or may resort to shortcuts. This erosion
of faith in the justice system could result in the breakdown of the Rule of Law,

Judicial Writs

In the Philippines, there are remedies and writs that may be availed of by human rights victims. Among
them are:

i. Writ of Habeas Corpus A writ issued by a judge directed to the person detaining another,
commanding him to produce the body of a prisoner at a designated time and place.

Section 1, Rule 102 of The Rules of Court of the Philippines provides for the scope of its application,
thus: “Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases
of illegal confinement or illegal detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.”

Perhaps to avoid the repetition of a mistake committed in the not-so-distant past, the Philippine
Constitution, in Section 15, Article Ill, provides that, “The privilege of the Writ of Habeas Corpus shall not
be suspended except in cases of invasion or rebellion when the public safety requires it.” The privilege
of the writ cannot be suspended on the ground of an “imminent danger” of invasion, insurrection, or
rebellion.

ii. Writ of Amparo

The Supreme Court en banc issued Administrative Matter No. 07-9-12-SC entitled, “The Rule on The Writ
of Amparo,” which took effect on October 24, 2007.

“The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof.”
 iii. Writ of Habeas Data

“The Rule on The Writ of Habeas Data”33 took effect on February 2, 2008.

“The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or o/a
private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.”

The right of the people to privacy and security in their persons, houses, papers and effects is
guaranteed under Section 2, Article Ill of the Philippine Constitution. No unreasonable searches and
seizures shall be made, but the courts may order a search if legally warranted.

Law enforcers may validly secure a search warrant from a judge by strictly observing the provisions of
Rule 126 of the Revised Rules of Court in order to conduct searches and seizures.

In case of an unlawful search or threat against the privacy of a person, among the remedies available to
the aggrieved party are:

i. The writ of habeas data, which can be availed of even if the violator is a private person or
entity;

ii. Criminal prosecution for Violation of Domicile or trespass;

iii. Indemnity arising from civil action; and

iv. Administrative sanctions to the offender.

In addition, the articles seized by reason of the unlawful search by public officials shall be inadmissible in
evidence.
d.7 Right to be presumed innocent

Article 11 of UDHR provides that, “Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defense." Article 14 of ICCPR also contains a similar provision, and adds the
enumeration of rights of an accused:

i. To be informed of the nature and cause of the charges;

ii. To be given time and facilities to prepare his defense and to communicate with counsel of
his own choosing;

iii. To be tried without delay;

iv. To be tried in his presence, and defend himself in person or through his counsel;

v. To examine the witness against him and obtain the witnesses on his behalf;

vi. To have free assistance of an interpreter; and

vii. Not to be compelled to be a witness against himself.

This provision is similar to the guarantees under the Bill of Rights in the Philippine Constitution on
presumption of innocence and procedural-due-process

Article 14, No. 2 of the Philippine Constitution states that, “In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified
and his failure to appear is unjustifiable.”

Although these rights are substantive and not merely procedural in nature, the Supreme Court
reiterated them in Rule 115 of the Rules on Criminal Procedure, to wit:

i. To be presumed innocent until the contrary is proved beyond reasonable doubt.

ii. To be informed of the nature and cause of the accusation against him.

iii. To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The accused may, however, waive his
presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is
specifically ordered by the court for purposes of identification. The absence of the accused
without justifiable cause at the trial of which he had notice shall be considered a waiver of
his right to be present thereat. When an accused under custody escapes, he shall be
deemed to have waived his right to be present on all subsequent trial dates until custody
over him is regained. Upon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel.

iv. To testify as a witness in his own behalf but subject to cross-examination on matters
covered by direct examination. His silence shall not in any manner prejudice him.

v. To be exempt from being compelled to be a witness against himself.

vi. To confront and cross-examine the witnesses against him at the trial. Either party may
utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot
with due diligence be found in the Philippines, unavailable, or otherwise unable to testify,
given in another case or proceeding, judicial or administrative, involving the same parties
and subject matter, the adverse party having the opportunity to cross-examine him.
 vii. To have compulsory process issued to secure the attendance of witnesses and production of
other evidence in his behalf.

viii. To have speedy, impartial and public trial.

ix. To appeal in all cases allowed and, in the manner, prescribed by law.”

It must be emphasized that these are rights of persons accused for crimes that are already filed in court.
Persons arrested for offenses but without cases filed against them in court, and respondents to criminal
complaints lodged before prosecutors’ offices, cannot yet claim the same rights.

Arrested suspects are entitled to the Miranda warning and the protection under Republic Act 7438,
while those undergoing Preliminary Investigation are entitled to their rights under Rule 112 of the Rules
of Court. Thus, a respondent may not insist on the right to remain silent during preliminary investigation
when he is subpoenaed to submit his counter-affidavit, as that would be prejudicial to him. His failure to
submit evidence in his favor would be construed as a waiver to present his evidence. In preliminary
investigations, it is sufficient that the respondent is afforded the opportunity to submit his evidence. The
investigation may proceed without such evidence, and without a clarificatory hearing having been
conducted first. As a matter of fact, in crimes with penalties of four (4) years and two (2) months of
imprisonment or less, the charges may be filed directly in court without giving the respondent any
opportunity at all to refute the charges.

A person charged for the commission of a crime shall retain his civil, political and other human rights. He
is entitled to vote and be voted for, as in the case of a few public offcials. His freedom of movement may
however be curtailed, such as when he is not granted bail and has to be ordered detained to ensure that
he faces trial, or when a Hold Departure Order (HDO) is issued against him. These orders are not penal
sanctions, but are measures imposed in order not to frustrate the ends of justice.

Apropos the right to be presumed innocent, Article 10 of ICCPR provides that a prisoner who is not yet
convicted (where no bail is recommended for the crime charged or if there be any, that he was not able
to post one) “shall, save in exceptional circumstances, be segregated from convicted persons and shall
be subject to separate treatment appropriate to their status as unconvicted persons.

d.8 Right against ex post facto law and bill of attainder

The second paragraph of Article 11 of UDHR provides that, “No one shall be held guilty of any penal
offence on account of any act or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the penal offence was committed.” Article 15 of ICCPR contains a
similar provision.

The Latin maxim, “Nullum crimen, nulla poena sine praevia lege poenali” (No crime, no punishment
without a previous penal law) encapsulates this provision, which treats of a law:

i. That holds a person liable for an act or omission that was not punished at the time of
commission; and

ii. That imposes a penalty heavier than the one that was applicable at the time of commission.

Section 22, Article Ill of the Philippine Constitution provides that, “No ex post facto law or bill of
attainder shall be enacted.”

D.9 Right to privacy

Article 12 of UDHR provides that, “No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right
to the protection of the law against such interference or attacks.” This is almost identical with Article 17
of the International Convention on Civil and Political Rights (ICCPR).

The Philippine Constitution provides in Article Ill that:

“Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 3. The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise, as prescribed by law.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding.”

The Anti-Wiretapping Law of the Philippines disallows evidence gathered from violation of privacy and
punishes the offender. The Secrecy of Bank Deposits Law also protects undue intrusion into the bank
information of a person. However, the Anti-Money Laundering Act (AMLA) allows the inquiry into the
financial information of a person when there is an allegation of the commission of “predicate offenses.”
In the case of the public official, the Code of Conduct requires that he divulge his financial information in
his Statement of Assets and Liabilities (SALN).

In August 2012, the Philippines passed the Privacy Data Protection Act,35 in order to penalize those who
pass confidential information of persons gathered in the course of their transactions. A couple of
months later, the Cybercrime bill was passed into law, albeit with opposition so determined that almost
immediately after its signing into law, government websites were hacked. The Supreme Court promptly
issued a restraining order while the case questioning the law’s constitutionality was pending.

d.10 Freedom of movement

Article 13 of the Universal Declaration of Human Rights (UDHR) provides for the “right to freedom of
movement and residence within the borders of each State. Everyone has the right to leave any country,
including his own, and to return to his country.” A similar provision is found in Article 12 of ICCPR.

The freedoms of movement, abode and travel are guaranteed under the Philippine Bill of Rights, but this
guarantee allows of exceptions: these freedoms may be curtailed or restricted upon lawful order of the
court, or in the interest of national security, public safety or public health.

Section 6, Article Ill of the Philippine Constitution provides that, “The liberty of abode and of changing
the same within the limits prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.”
In the case of Marcos, et al. vs. Manglapus, et al.,36 which the Supreme Court called “unique” and
“should not create a precedent, for the case of a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country and who within the short space of
three years seeks to return, is a class by itself,” the Supreme Court ruled that then President Corazon
Aquino acted well within her powers when she refused the petitioners’ return to the country.

D.11 Right to seek asylum

Article 14 of UDHR states that, “Everyone has the right to seek and enjoy in other countries asylum from
persecution. This right may not be invoked in the case of prosecutions genuinely arising from
nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations.”

The terms "non-refoulement,” “extradition,” and “deportation” are used when referring to the sending
of a person to a country, which could be his own or not. Briefly, their distinctions are:

i. Non-refoulement for political offenders and refugees:

For political offenses, asylum may validly be sought in other countries by persons facing political
persecutions in their own country, or by refugees. The State having the obligation to grant the asylum
cannot return (“refouler”) the asylum-seeker to his State of origin where he is in peril of persecution,
rejection, torture, or cruel treatment.

In Quebec, Canada, persecuted homosexuals have been granted asylum even if, strictly speaking, the
persecution is not by reason of any political ideologies or offenses. A new term has also emerged by
reason of environmental threats to States and peoples, i.e., the “environmental refugees”.

ii. Extradition for criminal offenses:

For criminal offenses, an accused can validly be returned to the State having criminal jurisdiction over
the case, through extradition, for criminal prosecution or sentencing. This may be the subject of an
agreement or treaty between the States involved. However, extradition cannot be validly exercised
when it is a means to refoule refugees or persons accused of political offenses.

iii. Deportation for immigration offenses:

For immigration offenses, an offender may be validly returned to his State of

origin if he is not authorized to be in the receiving country under its immigration laws.

But if the deportation will result in a refoulement whereby a person will be returned to
a State where he faces persecution or torture, such deportation would violate International Human
Rights Law.

d.12 Right to a nationality

Article 15 UDHR declares that, “Everyone has a right to a nationality.”

 As much as possible, the status of statelessness must be avoided from happening.
Essentially, Article 15 would involve two (2) things: the acquisition and the change of nationality.

Citizenship may be acquired through any of the following modes:

i. Jus sanguinis (by blood) — The child acquires the citizenship of his parents, regardless of the
place of birth (the mode of acquisition in the Philippines);

ii. Jus soli (by place) The child is a citizen of the place where he was born (mode of acquisition
in the US);

iii. Naturalization — A foreigner is granted citizenship by another country through a legal act. In
the Philippines, such legal act could be a decree by a tribunal or quasi-judicial tribunal.
Under exceptional circumstances, citizenship could be granted by law or by presidential
proclamation.

A child of a Filipino citizen is considered a Filipino regardless of his place of birth. Under Article 4, Section
1 of the Philippine Constitution, it is not necessary that both parents be Filipinos; what is required is that
one of them be Filipino. Consequently, a child of a Filipino parent will always have a nationality, unless
he repudiates it by a legal act. On the other hand, a child of American citizens who is born in the
Philippines will have a citizenship problem once he reaches the age of majority. During his minority, he is
deemed to have the same citizenship as his parents.

The right to change a nationality is not absolute: it is subject to the requirements and limitations of the
requested State.

Stateless children” in Sabah, Malaysia

Reports have it that there are many children of Filipino parents who roam the streets of Sabah,
Malaysia without any apparent nationality documents or birth registration. Some of them were born in
Malaysia of Filipino parents who have died or had been deported or otherwise returned to the
Philippines and left them abroad.

While they are legally citizens of the Philippines under the Philippine Constitution, their lack of
documents makes it a challenge to determine their citizenship. Since Malaysia does not adopt the jus
soli principle, they could not be considered Malaysian citizens either. These circumstances give them the
appearance of “statelessness,” which in turn results in their not being able to get the protection and
benefits from either country. These children are unable to go to public schools or avail of public health
care.

D.13 Right to marry and found a family

Article 16 of UDHR declares that “men and women of full age have the right to marry and to found a
family “ ……It further states that, “Marriage shall be entered into only with the free and full consent of
the intending spouses.” Article 23 of ICCPR contain a similar provision, and further recognizes the family
as “the natural and fundamental group unit of society and is entitled to protection by society and the
State. “ Article 10 of ICESCR reiterates the declarati011 and provides for special protection for mothers
and children.

The Philippine Constitution has an entire article (with four [4] sections) on the family. Section 1 thereof
provides that the State recognizes the Filipino family as the foundation of the nation. Section 2 of Article
XV provides that, “Marriage, as an inviolable social institution, is the foundation of the family and shall
be protected by the State.”

Marriage is not an ordinary contract between parties. It is a social institution which enjoys the
protection of the State and whence legal rights and obligations spring. Any doubt on the marriage
should be resolved in favor of its validity.

The internationally accepted age of marriage is 18 years old. In the Philippines, the Family Code requires
that both parties be at least 18 years old to be able to legally contract marriage. However, in places
where the Shari’ah Law applies, the age is lower.
While the right to found a family is guaranteed, there is still the controversial issue as to the extent that
married couples adopt methods to effectively plan the size of their family. Some groups are espousing
the belief that human rights apply only to children already born, while the Holy See believes that human
rights apply even to the unborn. The 1987 Philippine Constitution provides that the life of the unborn
must also be protected.

There is also the issue of marriage between the same sexes, and of adoption by same-sex couples. A few
countries in Europe have legalized same-sex marriages, such as Spain, Sweden, Belgium, Iceland,
Netherlands, Norway, Portugal, and Denmark. There are countries that do not have laws allowing such
marriage but which recognize property rights of couples in same-sex relationships. A great majority of
the States still refuses to bring this issue to the table.

D.14 Right to property

Article 17 of UDHR declares that, “Everyone has the right to own property alone as well as in association
with others. No one shall be arbitrarily deprived of his property.” One of the features of a democratic
society is the right to ownership of property, including real property. This is not particularly true under
certain forms of government, where real property are owned by the state, or owned by the ruling class.

In the Philippine Constitution, Section 9 of Article 3 states that, “Private property shall not be taken for
public use without just compensation.” While private ownership is recognized and protected, privately-
owned property may be taken for public use under the State’s power on Eminent Domain, or even
destroyed under the State’s exercise of Police Power, in order to protect public health, safety, order,
and morals.

d.15 Freedom of thought, conscience and religion

Article 18 of UDHR states that, “Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief and freedom either alone or in community
with others and in public or private, to manifest his religion or belief in teaching, practice, worship and
observance.” A similar provision is found in Article 18 of ICCPR.

Ideally, a person’s thoughts and beliefs are outside the sphere of State regulation. A person may believe
in a divine being, may have a religion, may change a religion, or may not have a religion at all. Whatever
it is that he believes or does not believe in, is not for the State to influence, interfere, or manipulate.
Section 6, Article Il of the Philippine Constitution states that, “The separation of Church and State shall
be inviolable.”

When the Philippines was ruled by Spain, the Gelasian Doctrine on the joint rule by Church and State
was observed in most parts of the country. The Roman Catholic Church was involved in running the
affairs of government, and in many aspects, it had control on the lives of the people. To this day, many
Filipinos still revere the Church’s commands and make decisions based on the Church's teachings. Even
in the enactment of laws, lawmakers still take into consideration the opinions of the Roman Catholic
Church.

There are still many states that have official religions, one of which is Iran. The Constitution of Iran
specifies its religion’ and its domestic laws are based on Shari’ah Law. There are also other states which,
although they have dominant religions, they maintained a secular government, the examples being
Turkey and the Philippines, where Islam and Catholic, respectively, are the dominant religions.

The right to thought, conscience, and religion which is guaranteed by Human Rights Law refers to the
internal intellectual process. The guarantee does not extend to external manifestations in the exercise
of a religion or belief, which could be regulated by the State. The Free Exercise Clause contained in the
Philippine Constitution should not be regarded as a license to go against criminal laws, public morals or
public policy. For example, the use of a dangerous drug or violence, even if intended for worship
purposes, is still a crime.
D.16 Freedom to practice or manifest religious beliefs

Can the sale of bibles and religious leaflets be taxed? In the case of American Bible Society vs. City of
Manila, the Philippine Supreme Court ruled that requiring a Mayor’s permit as a prerequisite for the sale
of bibles amounts to “religious censorship and restrained the free exercise and enjoyment of religious
profession.” The ruling should not be taken to mean, however, that “religious groups are free from the
financial burdens of government.” The Supreme Court had the occasion to make distinctions in the case
of Tolentino vs. Secretary of Finance. Citing the American Bible case, it ruled that:

i. Sales tax may be imposed for the sale of religious materials;

ii. License fees/Mayor’s permits for the sale of religious materials cannot be imposed on
religious organizations because it is tantamount to imposing a condition for the exercise of
the organization’s right;

iii. Registration fees (on EVAT) may be validly collected because they are not imposed for the
exercise of a privilege but only for the purpose of defraying part of the cost of registration.

The case of Sahin vs. Turkey, No. 44774/98, EC+HR, November 10, 2005

In the Philippines where the government is more tolerant on the exercise of religious beliefs of citizens,
where even religious activities (such as the Sinulog, Holy Week, culmination of Ramadan) are given
government support and recognized as legal holidays, we may find it interesting to learn about how
human rights cases on the exercise of religious beliefs are decided in other countries. A case in point is
the case of Sahin vs. Turkey, a country which is a member of the European Union (although
geographically part of Turkey is in Asia), and which is predominantly Muslim. The European Court is
viewed as the most developed human rights court in the planet, but their decision on this case (almost
unanimous) may surprise us a bit.

Ms. Leyla Sahin was a Muslim student of Medicine in Istanbul University, a government-owned
university. She wears a headscarf as a manifestation of her religious belief, a practice which was allowed
by her school for many years. When she was already on her 5th year, the university passed a circular that
students wearing headscarves or beards would be refused admission to lectures and courses. Refusing
to give up her scarf, Ms. Sahin was not allowed to take her exams, and later on was suspended for
joining a group of students contesting the circular, and was refused to enroll on a course.

She decided to go abroad in order to finish her studies in Vienna. She brought a case before the
European Court on Human Rights, basically arguing her right to freedom in the exercise of religious
beliefs, and her right to education which cannot be discriminated by reason of religious beliefs.

The Court decided against her, and made a reference to the ruling of the Constitutional Court of Turkey
that, “freedom of dress in institutions of higher education was not absolute. The Constitutional Court
had held that authorizing students to ‘cover the neck and hair with a veil or headscarf for reasons of
religious conviction’ in the universities was contrary to the Constitution. That decision of the
Constitutional Court, which was both binding and accessible, as it had been published in the Official
Gazette Of 31 July 1991, supplemented the letter of transitional section 17 and followed the
Constitutional Court’s previous caselaw. In addition, the Supreme Administrative Court had by then
consistently held for a number of years that wearing the Islamic headscarf at university was not
compatible with the fundamental principles of the [Link], regulations on wearing the
Islamic headscarf had existed at Istanbul University since 1994 at the latest, well before the applicant
enrolled there.”

The Court held that the ban on the wearing of religious symbols in universities was based on secularism,
separation of Church and State, pluralism and respect for the rights of others. “The Constitutional Court
added that freedom to manifest one’s religion could be restricted in order to defend those values and
principles.”

The bottom-line reasoning of the ruling in this case was respect. But this reasoning raises more
questions than answers. Was it disrespectful and offensive to wear a particular dress which was not
otherwise obscene, in order to manifest faith? Has the government the right to ban a person’s wardrobe
which is not otherwise morally offensive just because such dress happens to be worn by members of a
particular religion? Was this a valid exercise of Police Power by the government? Or was the wearing of
the veil a valid exercise of the right to express a belief?
It seems that the rulings of the Philippine Supreme Court in cases of a similar texture reveal an attitude
of greater acceptance of or tolerance towards religious practices. Recent government declarations of
holidays show that the government has started recognizing the practices of religions other than Roman
Catholic. In the Philippines, Christians, Muslims and the Chinese celebrate each other’s religious or
traditional holidays together.

This culture of religious acceptance shows a maturity of Filipinos towards religious diversity, a culture
that is lacking in many countries, even those which are touted to be more “advanced,” where violence
sometimes erupts due to religious conflicts. Here, we even see Muslim students wearing veils enrolled in
Catholic universities, something which would be unthinkable in other countries.

The enactment of a Shari’ah Law which is applicable to Muslims in Muslim areas and the establishment
of Shari’ah Courts also show the government’s respect to the religious traditions of Muslims. There are
questions raised by rights advocates, however on the different standards that the Philippines is setting,
say for instance, on the marrying age of girls, with these different civil laws, as they may run counter to
our treaty commitments, such as the provisions of the Convention on the Rights of the Child.

D.17Freedom of expression

Article 19 of the Universal Declaration of Human Rights as well as Article 19 of the International
Convention on Civil and Political Rights (ICCPR) guarantee the freedom of opinion and expression. ICCPR
states, however, that the right may be subject to restrictions as shall be provided by law and are
necessary for the respect of the rights or reputations of others, or for the protection of national security
or of public order, public health, or morals.

Freedom of expression is a fundamental right in every democracy. However, it is oftentimes abused. It is

often lost to some people that the right, though fundamental, is not absolute. It is subject to restrictions
provided by law. The restrictions may differ from State to State: different states have different degrees
of tolerance and may thus have different interpretations of how much freedom is within legal limits.
Usually, traditional and religious backgrounds and political climate are factors that determine the degree
of tolerance of a state.

Hence, libel laws may validly be passed to regulate this freedom. In the case of Chaplinsky vs. State of
New Hampshire,41 the Court said that certain categories of speech fall outside the bounds of
constitutional protection, such as the lewd and the obscene, the profane, the libelous, and insulting or
fighting words.

In the Philippines, Inciting to Rebellion and Inciting to Sedition are crimes punished under the Revised
Penal Code. In determining whether an utterance could be considered criminal, the “Dangerous
Tendency Rule” may be applied. The application of this test can be tricky, and sometimes can be
“weather-weather lang.”42 That time was when the leadership was so paranoid with criticisms that
even purely legitimate and constructive comments were regarded as “subversive,” “communist” and
“criminal.”

The Issue of morals is another tricky one. While considered sufficiently educated compared to others in
some parts of the world, we cannot be described as very “liberated” as a people. In many aspects we are
conservative, and this could be due to the deep influence of religion, wherein morality is often equated
with religiosity. In one incident, when an artist displayed an artwork featuring a religious icon with a
male genitalia, which according to him was an expression of his art, the piece was assailed for being
immoral and the controversy sparked so much outrage. The outrage itself drew criticisms because
allegedly, that same outrage was not displayed in other scandals, such as the many instances of sexual
abuses by religious people and violent rituals committed as religious or cult practice. Critics deem these
more immoral compared to the image of a part of a person’s anatomy being placed where it should not
be. It seems that the society’s gauge of morality has something to do with religious tolerance or
intolerance.
Sometime in September 2010, a secularist dressed up in “Jose Rizal” costume expressed his disgust at
religious meddling with government affairs. There was nothing libelous about his principal message per
se except that he resorted to name-calling to address his subjects. He claims “freedom of expression.”
The Revised Penal Code, however, contains provisions against the interruption of a religious ceremony
and Article 133 penalizes acts that offend religious feelings. Aside from libel, there are also laws
penalizing oral defamation, inciting to rebellion and sedition, and the unlawful use of media.

The recent passage of the Cybercrime law sent jitters to bloggers who fear that the provision on e-libel
might be used to stunt freedom of expression. While there is no debate that freedom of expression is a
fundamental right that is not absolute and may be regulated, among the issues raised against the
constitutionality of the Cybercrime Law was the fact that a single act may be punished twice (under the
Revised Penal Code on Libel as well as under the Cybercrime Law), and that the Cybercrime law carries
with it a higher penalty than the provision in the Revised Penal Code.

However, we may draw some answers to these questions by looking at the Firearms Law. It must be
remembered that until the famous Ladjaalam and Agote rulings, the single act of carrying an unlicensed
firearm during election period was prosecuted both under the Firearms Law and the COMELEC gun ban.
The Supreme Court ruling in People vs. Doriquez on what is and what is not Double Jeopardy remains to
this day a good ruling. Further, the difference in the severity of the penalty for high caliber and low
caliber firearm was never declared unconstitutional.

d.18 Freedom of assembly and association

Article 20 of UDHR states that, “Everyone has the right to freedom of peaceful assembly and association.
No one may be compelled to belong to an association.” Article 21 and 22 of ICCPR reiterate these rights.

The Philippine Constitution likewise makes these guarantees. Section 4, Article Ill states that, “No law
shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.” Section 8 of the
same article provides that, “The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes _not contrary to law shall not be
abridged.”

If the objective of the association is to commit a crime or do something which is repulsive to public
morals, the leaders and members of the association may be punished under the law.44 And even if the
participants in an assembly do not belong to an association, they could be punished for Illegal Assembly
under the Revised Penal Code if the elements thereof are all present, provided there be an actual
meeting.

d.19 Right to take part in government

Article 21 of UDHR declares that, “Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.” Article 25 of ICCPR further guarantees that every
citizen shall have the right and opportunity “to vote and be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors.”

The essence of a truly democratic and republican government is that authority resides in the people and
all government authority emanates from them.46 This authority is exercised through the right to
suffrage, which includes the right to vote and be voted for office, the right to be consulted on certain
issues in a referendum or plebiscite, and the right to remove or recall a public official from office.
Article 25 of ICCPR emphasizes that elections shall be genuine and periodic, and suffrage be equal and
universal. By “genuine” is meant that the elections must be free, honest, intelligent, and truly reflective
of the people’s will; by “equal and universal” is meant that all votes must carry the same weight
regardless of the voter’s sex, religion, or status in life.

The right to suffrage is not an absolute right, it is subject to restrictions. To qualify as a voter, the
requirements of age, citizenship, and residence must be met. To be eligible to run for public office in the
Philippines, one must comply with the literacy requirement, in addition to being a qualified voter, and
not possessing the disqualifications under the law.

A Filipino citizen who is at least 18 years old can vote. This age requirement need not be present at the
time of registration as a voter, but must be present on the day of the elections that the voter proposes
to vote. The age requirement varies for candidates to public office.

The residence requirement to qualify one to become a voter does not simply mean physical presence. In
the cases of Romualdez-Marcos vs. COMELEC and Aquino vs. COMELEC, the Supreme Court interpreted
the term “residence” for election purposes to mean “domicile.” Thus, Romualdez-Marcos was deemed
qualified to run for Congress even if she was not physically present during the required number of years
(i.e., one [1] year for Congressional candidates) as Leyte was considered her domicile of origin, to which
she intended to return even if physically absent in the meantime.

It was not until 1933 that the women in the Philippines were allowed to vote, with the enactment of Act
4112, otherwise known as Women Suffrage Act. Since then, the Philippines has had exemplary women
in public service. It is one of the few countries in the world that had two (2) lady presidents, a lady chief
justice, a lady international judge, and several lady senators who are definitely not push-overs in the
Senate.
D.20 Right to social security

Article 22 of the UDHR declares that everyone has the right to social security. Social security is aimed at
ensuring that every member of society has access to resources by which he can maintain his human
dignity and enjoy his economic, social and cultural rights, including his right to an adequate standard of
living.

General Comment No. 19 of the UN Committee on Economic, Social and Cultural Rights (CESCR) states
that social security measures should cover the following: a) health care, b) sickness, c) old age, d)
unemployment, e) employment injury, f) family and child support, g) maternity, h) disability, and i)
orphans and survivors.

Article 9 of the ICESCR recognizes that the right to social security includes social insurance. The
insurance-based scheme is one where the contributions are paid for the enjoyment of benefits. The
contribution may be paid by the beneficiary, by his employer, or by government. In the Philippines,
social insurance for privately employed workers is provided by the Social Security System (SSS) and the
payment of the contribution is shared by the employee and the employer. For employees of
government agencies, social insurance is usually administered by the Government Social Insurance
System (GSIS), although other systems are used in some agencies, like the Department of Justice and the
judiciary.

States may also adopt non-contributory social security schemes. This scheme may target only specific
classes, or may be a temporary measure. In the Philippines, government agencies such as the
Department of Social Welfare and Development (DSWD) or the local government unit (LGU) usually
provide assistance to victims of calamities, in the form of cash, shelter or housing materials. The
Pantawid Pamilyang Pilipino Program (4 P's) is a social assistance and social development strategy aimed
at poverty reduction in compliance with the Millennium Development Goals of the United
Nations. The Senior Citizen's Act granting discounts at restaurants, groceries and drugstores to persons
sixty years old or over is another scheme, specifically designed for senior citizens.

d.21 Right to work

Article 23 of UDHR declares that, "Everyone has the right to work, to free choice of employment, to just
and favourable conditions of work and to protection against unemployment. Everyone, without any
discrimination, has the right to equal pay for equal work.... " The right to work and to the enjoyment of
just and favorable conditions of work are also recognized under Articles 6 and 7 of ICESCR.

Labor is a primary social economic force, and the State "shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full employment and equality of employment
opportunities for all. "

d.21 Right to rest and leisure

Article 24 of UDHR declares that, "Everyone has the right to rest and leisure, including reasonable
limitation of working hours and periodic holidays with pay." This labor right protects the individual from
the harmful long-term effects of long working hours on his physical and psychological condition.

The internationally-accepted daily working hours is eight (8) hours. The International Labor Organization
(ILO) has been pushing for international labor standards. Still, slave-like conditions are present in both
industrialized and non-industrialized countries.

In the Philippines, workers are entitled to lunch breaks and short coffee breaks. Maternity and even
paternity leaves are granted, with pay. The Labor Code of the Philippines grants premium pay for work
done at night or during holidays.

d.22 Right to adequate standard of living

Article 25 of UDHR declares that, "Everyone has the right to a standard of living adequate for the health
and well-being of himself and his family, including food, clothing, housing and medical care and
necessary social services " Article 11 of ICESCR recognizes the right to adequate standard of living and
the right of everyone to be free from hunger. The said article exhorts member States to take measures
to improve food production and distribution.

The rights to food, housing, and medical are the three (3) most basic rights of human beings. The term
"adequate" shall be understood to mean the minimum requirement for subsistence. However, even the
minimum requirement may not be met in certain jurisdictions. Usually, compliance depends on the
state's economic capability.

As "positive rights," the responsibility of the State is to do something to ensure that these rights are not
denied to the citizens. This does not mean that the State must give away houses and food
indiscriminately, because that could produce disastrous effects, aside from not being feasible or
affordable. Rather, it means that the State must establish programs and infrastructures to spur activities
and opportunities for its citizens. The principles of Social Justice have often been applied to this right,
wherein states are urged to provide ways and means that ensure access to food, housing, health care,
and clothing regardless of wealth or status in life.

d.23 Right to education

Article 26 of the UDHR and Article 13 of the ICESCR recognize the right of everyone to education. In
these human rights instruments, it is stated that:

i. Elementary education shall be free and compulsory;

ii. Secondary education in its different forms, including technical and vocational, shall be made
generally available and accessible;

iii. Higher education shall likewise be accessible on the basis of capacity.

One of the targets in the United Nations Millennium Development Goals (MDG) is to "ensure that, by
2015, children everywhere, boys and girls alike, will be able to complete a full course of primary
schooling."

The Philippines has long complied with the MDG on free elementary education. In most barangays in the
country, there is also free secondary education. On February 27, 2012, Republic Act 10157 was passed,
providing for the implementation of the free universal kindergarten program for all public schools.

d.24 Right to enjoy economic, social and cultural life

Article 27 of UDHR and Articles 3 and 15 of ICESCR recognize the right of everyone to enjoy their
economic, social and cultural rights. Article 27 of ICCPR guarantees the right of ethnic, religious or
linguistic minorities "to enjoy their own culture, to profess and practice their own religion, or to use
their own language."

In the Philippines, the government promotes and encourages the enjoyment and preservation of
cultural heritage and traditions. Many cultural and religious activities have become recognized as
holidays and have become tourist attractions themselves, such as the Sinulog, Ati-atihan, Pintados and
Dinagyang of the Visayas. In some places with Igorot heritage, the dances, artwork, agriculture, and
tradition continuously amaze tourists and are preserved and passed on to the younger generation
through education by incorporating them in the curricula.
There are certain instances when religious practices may clash with other human rights principles. A
classic example is the age of marriage, which under International Human Rights Law must be at least 18
years, regarded as "full age" or "age of maturity." Some religious laws and traditions in many countries,
including the Philippines, may allow marriage during what is regarded as "age of childhood" by
international law.

d.25 Right of self-determination

In both the ICCPR and ICESCR, Article 1 states that, "All peoples have the right of self-determination. By
virtue of that right they freely determine their political status and freely pursue their economic, social
and cultural development." As part of international law, both covenants emphasize the political right of
"peoples" to determine their political status. This right is reiterated in Article 1(2) of the United Nations
Charter which states that one of the purposes of the UN is: "To develop friendly relations among
nations based on respect for the principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace."

The word "peoples" has not been officially defined, but has been taken to mean a group of persons
sharing the same political, social, racial, and cultural backgrounds. Ethnic minorities, religious groups
and tribes with a slightly different form of art or dialect are not considered separate "peoples" under
International Law, but are part of the larger group with the common background.

There used to be a number of "peoples" who did not have their own sovereignty, owing mostly to
invasions, colonization’s and war. Philippines, Indonesia, India and many others in South America, Africa
and Europe were under the control of governments other than their own. Filipinos shared a common
culture and were "one people" before the Spaniards came. They had a form of government, were long
engaged in economic relations with other nations, had several forms of religion, and had its own unique
literature and alphabet before the Spanish conquest.

The right of self-determination gets problematic where the issue of territory is concerned. The conflict
between Israel and Palestine revolves around this issue. They are definitely separate peoples but they
lay claim on the same territory. The issue of the Inuit in Greenland who are asking for self-determination
and independence from Denmark is another matter because they, as a people, have their own territory.
The issue of Taiwan and China is that Taiwan is claiming sovereignty and is occupying a separate
territory but they, as a people, are historically Chinese. The issue of the Indian nations in the United
States is similar to the issue of the Aboriginals in Australia, who historically owned the territories where
they are now considered "minorities." In the United States however, the Indians are given "territories"
in the form of reservations, and exercise autonomy in the governance of their "nations." In the case of
the Aboriginals in Australia, their native titles to their indigenous lands have been very restricted by law
and jurisprudence.

There is no rule or procedure under International Law for secession by a group from an established State
as a mode of exercising the right of self-determination. Paragraph 6 of UN Resolution 1514(XV), states
that any attempt "aimed at partial or total disruption of the national unity and the territorial integrity of
a country is incompatible with the purposes and principles of the Charter. "

In the case of East Timor, secession came about after two (2) decades from its annexation to Indonesia,
which in turn happened barely days from the time it became independent from Portugal. East Timor was
not part of Indonesia for many years and the East Timorese had a contemporary culture and religion
different from most Indonesians prior to its annexation.

In the case of Mindanao, several groups had tried for decades to secede but were not successful owing
to a lot of factors, including the ethnical and cultural sameness of the people from Mindanao with those
from the rest of the country, the religious acceptance and tolerance of the religiously-diverse population
in Mindanao, and the greater participation of Muslim Filipinos in the national governance and economy.

d.26 Right to health

The right to health is declared in Article 25 of the UDHR which states that, "Everyone has the right to a
standard of living adequate for the health and well-being of himself and of his family. . .. " Article 12 of
the ICESCR states that, "The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health…”

The UN Committee on Economic, Social and Cultural Rights (CESCR) states in General Comment No. 14:
The Right to the Highest Standard of Health that, "the right to health contains both freedoms and
entitlements. The freedoms include the right to control onds health and body, including sexual and
reproductive freedom, and the right to be free from interference, such as the right to be free from
torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include
the right to a system of health protection which SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW

Article 38(1) of the Statute of the International Court of Justice (ICJ) enumerates the sources of human
rights laws as follows, to wit:

 International conventions;
 International custom, as evidence of a general practice accepted as law;

 General principles of law recognized by the community of nations (referred in the Statute as
"civilized nations"). Nos. 1 to 3 are considered the principal sources of international law;

 Judicial decisions and the teachings of the most highly qualified publicists (as subsidiary means
for the determination of rules of law).

A. INTERNATIONAL AGREEMENTS

International agreements, more commonly known as "treaties," usually are officially called conventions
or covenants. The Vienna Convention on the Law of Treaties defines a treaty as a "legally binding written
agreement concluded between States." A supplement or subsequent agreement relative to an existing
treaty is usually referred to as "protocol." Thus, the "Palermo Convention" refers to the original treaty
which is the United Nations Convention Against Transnational Organized Crime, while the "Palermo
Protocols" refer to the subsequent treaties entered into by the states to supplement the original treaty
and which deal on specific crimes, e.g., human trafficking, smuggling of migrants, or arms trafficking.

A State's consent to be bound by a treaty is expressed through ratification, approval or acceptance.

Generally, the act of merely signing a treaty is not enough to bind the State. Once a treaty is ratified, the
State is bound to faithfully comply with its treaty obligations under the doctrine of "pacta sunt
servanda." But unlike other treaties where liability arises only where there is bad faith on the part of a
State, in human rights treaties there can be liability even in the absence of bad faith.

The core international human rights treaties are:

 International Convention on Civil and Political Rights (ICCPR, entered into force on March 23,
1976) with 2 Optional Protocols;

 International Convention on Economic, Social and Cultural Rights (ICESCR, entered into force on
January 3, 1976);
 Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(CAT, entered into force on June 26, 1987);

 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD,

entered into force on January 4, 1969);

 Convention on the Rights of the Child (CRC, entered into force on September 2, 1990) with 2
Optional Protocols;

 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, entered
into force September 3, 1981) with 1 Optional Protocol;

 International Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families (entered into force July 1, 2003);

 International Convention for the Protection of All Persons from Enforced Disappearances
(adopted in 2006);

 International Convention on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities.
B. INTERNATIONAL CUSTOMARY LAW

To be considered international customary law, there must be:

[Link] objective element of acts amounting to "settled practice" of States; and

[Link] subjective element consisting of a "belief that this practice is rendered obligatory by the existence
of a rule of law requiring it" (opinio juris give necessitates or opinion juris or an opinion of law or
necessity).

In the cases of North Sea Continental Shelf,14 the International Court of Justice (ICJ) laid down the
Doctrine-Customary Law, and made clear the requisite objective and subjective elements.

Jus cogens

There is a unique class of customary laws that occupy the highest echelon in Human Rights Law
hierarchy, known as jus cogens ("compelling law"). This group of fundamental norms is superior to other
sources of international law and need not be agreed upon by States in a treaty in order to form part of
their jurisprudence. They are deemed to be interrogable as well.

The definition, elements, and effect of peremptory norms or "jus cogens" over treaties are contained in
the Vienna Convention on the Law on Treaties, which states that:

"Article 53. Treaties conflicting with a peremptory norm of general international law ('jus cogens'). A
treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law. For the purposes of the present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character."

From this article, we can derive the following elements of jus cogens, namely:

a. It is a peremptory norm of general international law;

b. It is accepted and recognized by the international community;

c. There can be no derogation therefrom;

d. It can be modified only by a subsequent norm of general international law having the same character.

The concept of jus cogens became controversial because of the difficulty in determining what is the
norm, considering that different States may have different cultural influences and different standards to
gauge what is peremptory norm. Among the universally-accepted norms are the rights against slavery,
genocide, acts of aggression, and racial discrimination.

The International Court of Justice (ICJ) settled some of the issues pertaining to jus cogens. In the case of
Nicaragua vs. the United States of America 15 decided in 1986, the ICJ reiterated the superiority of jus
cogens as a source of human rights. The ICJ ruled that the principle of non-use of force is jus cogens, so
that even if the UN Charter and the treaty were not applicable in the case, the ICJ may still rule on that
issue. In this case involving the Unites States, the latter did not ratify the applicable treaty and did not
make a categorical acceptance of the jurisdiction of an international court. Jurisdictional questions
notwithstanding, the ICJ still ruled on the case against the United States because it involved a jus cogens
right.

Obligatio erga omnes

There is a category of international obligations known as obligations erga omnes. These are obligations
that are owed by States to all, regardless of the presence or absence of their assent to be bound
thereby. These obligations are intertwined with the concept ofjus cogens and usually arise from jus
cogens rights.

These obligations were first recognized in the obiter dictum in the case of Barcelona Traction Light and
Power Company (Belgium vs. Spain) which was decided by the International Court of Justice. In the
Barcelona Traction case, the ICJ made a distinction between the State's obligation to the international
community and its obligations to another State in the field of diplomatic protection. If a State violates a
treaty with another State and the treaty only pertains, for instance, to their bilateral agreement
regarding trade, that infringement is a private matter between the contracting

However, where human rights laws which are of paramount importance for the international
community are violated, all states have a legal interest in their protection, for they are obligations owed
by the State to the community of States. They are obligations erga omnes.

A respected human rights scholar, M. Cherif Bassiouni, whom this writer had the privilege of listening to
at a symposium on Human Trafficking at Johns Hopkins University in Washington, D.C. in November
2010, wrote about international crimes which are considered "jus cogens crimes" and which give rise to
erga omnes obligations of a State to prevent and prosecute. According to Prof. Bassiouni, the statute of
limitations does not apply to jus cogens crimes, and universal jurisdiction may even apply to these
crimes.

Universal jurisdiction

When discussing jus cogens rights and erga omnes obligations, reference is usually made to the concept
of universal jurisdiction.

This is because the principles of jus cogens and erga omnes transcend boundaries.

Under this principle, a State may prosecute a crime committed elsewhere if such crime is a jus cogens
crime. Belgium is responsible for the first widely-implemented law on universal jurisdiction, which it
passed in 1993. (In 2003, the law was repealed and substituted with another one on extraterritorial
jurisdiction.) Perhaps one of the best-known examples of the exercise of universal jurisdiction was the
issuance of a warrant of arrest by Spanish Judge Baltasar Garzon against former Chilean dictator
Augusto Pinochet for crimes committed in Chile against Spanish citizens, which warrant was
implemented in the United Kingdom. In Europe, members of the European Union also adopt the
European Arrest Warrant Scheme, and in the United Kingdom, they have the Commonwealth Extradition
Scheme.

The concept of universal jurisdiction has met a lot of criticisms from very influential statesmen including
Henry Kissinger because it is deemed an intervention of a state’s sovereignty over its [Link] initial
fervor that welcomed the concept has waned over the years, although some sectors are still vigorously
pursuing its application by States on certain select crimes. The creation of the International Criminal
Court (ICC) and other international criminal tribunals also reduced the need for the exercise by
individual States of universal jurisdiction.

Actio popularis
Prosecution of jus cogens crimes may be initiated by another person or group of persons for the benefit
of another through a complaint actio popularis. Non-government offices (NGOs) of good standing in the
international community may be allowed to sue for and on behalf of victims who do not have the means
to do so. Complaints actio popularis do not necessarily arise from erga omnes obligations: the term erga
omnes refers to obligations of States to the international community, while actio popularis is a rule of
procedure in bringing a suit on another's behalf. However, these are terms which are usually used
together in the course of the discussion on jus cogens rights and erga omnes obligations.

C. GENERAL PRINCIPLES OF LAW

General principles of law are unwritten, and uncodified concepts from which laws are based. A principle
of law may evolve from local or municipal jurisprudence of a State which is adopted by other States,
from teachings and publications, and from works of experts.

An example of a body of principles of law originating from experts' views is the Yogyakarta Principles on
the rights of lesbians, gays, bisexuals and transgenders (LGBT). While the Yogyakarta comprises mostly
of human rights principles already embodied in other treaties and are considered fundamental human
rights of every individual regardless of sex (such as the rights to marry and to found a family), these
rights become controversial where it refers to LGBT, simply because of traditional gender stereotyping.
The Yogyakarta Principles is still in its infancy and many States are still not wont to adopting it, especially
those whose governments are deeply influenced by religion. It will likely take a long time before it will
evolve into being part of "generally-accepted principles of law," and probably only in certain regions of
the world.

In many instances, the United Nations is responsible for pushing for studies and researches on issues of
international concern, for providing an avenue for international discussion, and for adopting principles
relative to such issues.

The Incorporation Clause

The Philippine Constitution "adopts the generally accepted principles of international law as part of the
law of the land. This is referred to as the incorporation clause. This means that the Philippines has the
obligation to observe generally accepted principles of international law not only as customary law but
because of the express provision of the incorporation clause in the Philippine Constitution.

In Kuroda vs. Jalandoni, the Philippine Supreme Court ruled that the Military Commission created by the
President of the Philippines which tried General Shigenori Kuroda of the Japanese Imperial Army for the
war crimes committed in Philippine territory during World War 2, was valid and constitutional by virtue
of the incorporation clause in Article 2 of the Philippine Constitution. That, despite the fact that the
Philippines was not a signatory of The Hague and Geneva Conventions at that time.

D. JUDICIAL DECISIONS AND TEACHINGS

International case law is recognized in Article 38 of the Vienna Convention on the Law on Treaties as a
subsidiary means for the determination of rule of law.

International case law may consist of judgments of international tribunals, the regional courts and even
domestic courts, although international tribunals rarely look to decisions of domestic courts in ruling an
international dispute. The teachings of the most highly qualified publicist may also be consulted in ruling
an international dispute.

The international and regional tribunals

a. International Court of Justice (ICJ)

The principal judicial organ of the United Nations Organization. It was established by the Charter of the
United Nations in June 1945 and began work in April 1946. It is based in The Hague, The Netherlands
(which is known as the "Legal Capital of the World"), and is the only UN organ located outside New York,
USA, where the UN has its headquarters.

At the ICJ, only member States may lodge complaints. Individuals are not recognized as parties in that
court. It exercises jurisdiction in two (2) kinds of cases:

I. Contentious cases — Cases submitted by State Members of the UN, or other States which are parties
to the Statute of the Court or which have accepted its jurisdiction; and
ii. Advisory proceedings — Requests for advisory opinions on legal matters submitted by UN organs and
specialized agencies.

The official languages in the ICJ are English and French. It is composed of 15 judges, who are elected for
terms of office of nine (9) years by the United Nations General Assembly and the Security Council. It is
assisted by its administrative organ known as the Registry.

While individuals still do not have a jus standi to bring a complaint before the ICJ, they may be
beneficiaries of such suit, which can be brought in their behalf by a State.

The Barcelona Traction case (Belgium vs. Spain)18 decided by ICJ is noteworthy because the court laid
down two (2) important doctrines:

i. A State can bring the case for the benefit of a corporation; and

ii. It made an obiter dictum recognizing and expanding the meaning of erga omnes obligations.

In this case, Belgium brought the case in behalf of Belgian nationals who were investors in a Toronto-
registered company which was doing business in Spain. Although ICJ ruled that Belgium had no jus
standi to bring the suit, it pronounced that Canada would have such right to bring the suit for the benefit
of the corporation.

b. International Criminal Court (ICC)

A court created by the Rome Statute of the International Criminal Court on July 17, 1998. It is also based
in The Hague, The Netherlands. The ICC is an independent permanent international criminal court. The
ICC is known as a court of last resort, and will only try cases after the exhaustion of remedies before
domestic courts, and only for the gravest offenses.

The cases which may be tried at ICC are:

i. Crimes against humanity, such as terrorism;

ii. War crimes (which can be committed only by members of the military);
iii. Genocide; and

iv. Crimes of aggression.

c. Ad hoc criminal tribunals

i. International Criminal Tribunal of the former Yugoslavia (ICTY);

ii. International Criminal Tribunal for Rwanda (ICTR).

There were also the Nuremberg Tribunal (prosecution of major war criminals of the Nazi empire) and
the Tokyo Tribunal (for atrocities committed during World War Il by the Japanese Imperial Army.)

The decisions of the Nuremberg Tribunal were particularly instructive, primarily because the tribunal
was one of the early war crimes courts, and secondarily because of the controversial personalities tried
in that court. The Nuremberg Principles continue to have persuasive effect to this day.

d. Regional Courts

i. European Court of Human Rights (ECHR) based in Strasbourg, France, is also known as the
Strasbourg Court. This was created by the Convention for the Protection of Human Rights and
Fundamental Freedoms, which was signed in Rome on November 4, 1950. The same treaty also created
the European Commission of Human Rights (ECHR). Presently,Individuals may bring a suit directly to the
EC+HR, as provided under the 11th Protocol to the ECHR which came into force on November 1, 1998.
ii. Inter-American Court of Human Rights (IACHR) based in San Jose, Costa Rica, was established by
the American Convention on Human Rights of 1969. Under the new Rules of Procedure adopted in 2000
and in force starting June 1, 2001, individual complainants are now granted locus standi in judicio before
the IACHR. However, a Declaration of Acceptance by the State Party to the American Convention is
necessary in order for the IACHR to exercise its jurisdiction on a complaint filed against that State. The
United States of America has not made such Declaration.

iii. African Court of Human and People's RightsCACHPR) was created under the Protocol to the
African Charter on Human and People's Rights on the Establishment of an African Court on Human and
People's Rights, which entered into force in 2004. It was not created by the original African Charter
(Banjul Charter), although said Charter created the African Commission on Human and People's Rights.

Actio popularis is allowed under the African system (non-victims may bring the suit in behalf of the
victims). This aside from the system whereby States may bring a complaint against another State; and
the State Reporting mechanism.

There is no Asian human rights court yet, although ASEAN human rights advocates were successful in
engineering the creation of the ASEAN Human Rights Commission in October 2009. The reason
advanced for this failure to come up with such a court in Asia is the cultural diversity of the peoples in
this region. This, however, was debunked by some Asian human rights scholars, particularly Xiarong Li,
who maintained that human rights are universal and not "culturally specific”.

e. Hybrid or internationalized courts

These are courts which are a mix of domestic and international, both in the judges and staff as well as
the laws applied, BUT they either are integrated in the domestic judicial system or appended to it.
Examples are:

i. Sierra Leone — The Special Court for Sierra Leone.

ii. Cambodia — Known as the Extraordinary Chambers in the Courts of Cambodia, this court was
created to address crimes committed by the Khmer Rouge.

iii. East Timor — Special Panels of Serious Crimes.

iv. Kosovo — Known as "Regulation 64" Panels in the Courts of Kosovo.

The recent demilitarization of Myanmar (Burma) and the transition of its government to a more
democratic system could bring about prosecutions for human rights abuses committed by the previous
leadership of the military junta.

Teachings of jurists and publicists

The teachings of highly qualified jurists and publicists is a subsidiary means of determining international
human rights law. In the case of the international laws of armed conflict, the declaration of the Russian
delegate Fyodor Fyodorovich Martens to the 1899 Hague Convention on the Laws and Customs of War
on Land, became a guiding principle of sorts in determining how States should conduct themselves
during wartime when there are no specific rules enacted which apply to the situation.

Known as the Martens Clause, it forms part of the Preamble of the 1899 Hague Convention, the
wordings of which are as follows:

"Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to
declare that in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of humanity and the requirements of the
public conscience."

The International Criminal Tribunal of Afghanistan

The International Criminal Tribunal of Afghanistan which convicted US President George W. Bush on
March 13, 2004 in Tokyo, is not an official tribunal. It is a people's tribunal founded on the international
criminal law and international humanitarian law.

The Kuala Lumpur War Crimes Commission

In May 2012, former US President George W. Bush, former Vice-President Richard Cheney, Donald
Rumsfeld and legal advisers Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo
were tried and convicted in absentia in Malaysia for war crimes by the Kuala Lumpur War Crimes
Commission, an initiative of former Malaysian Prime Minister Mahathir Mohammad. This tribunal is
similar to the International Criminal Tribunal of Afghanistan and is not official.